Bombay High Court
Prakash Sitaram Patil vs Ramesh Shankar Patil And Anr on 27 September, 2023
Bench: Amit Borkar
2023:BHC-AS:28376
904-wp6204-2023.doc
AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6204 OF 2023
Prakash Sitaram Patil ... Petitioner
V/s.
Ramesh Shankar Patil & Anr. ... Respondents
Mr. Girish R. Agrawal with Ms. Naina P. Boraste for the
petitioner.
Mr. Kalpesh U. Patil for the respondents.
CORAM : AMIT BORKAR, J.
DATED : SEPTEMBER 27, 2023
P.C.:
1. By this writ petition under Article 227 of the Constitution of
India, the petitioner/original plaintiff is challenging order passed
by the Appellate Court rejecting application for temporary
injunction filed by the petitioner.
2. The petitioner filed Regular Civil Suit No.284 of 2022
seeking declaration of ownership of the suit property and
consequential injunction not to disturb his possession over the suit
property. Gat No.257 ad-measuring 19-Are as described in
paragraph 1B of the plaint is the suit property. It is contended that
during consolidation scheme, the plaintiff is allotted the suit
property. On 8 November 2021, defendant filed an application
under Section 138 of the Maharashtra Land Revenue Code, 1966
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("MLRC" for short) for removal of encroachment from .03-Are out
of suit property which was allowed. According to the plaintiff, he
has cultivated sugarcane crop over the suit property.
3. The Trial Court based on application filed under Section 138
of the MLRC for removal of encroachment over the suit property
granted injunction against defendant. The Appellate Court set
aside the order of injunction on following three reasons: (i) no
evidence produced by the plaintiff to prove his possession over the
suit property; (ii) under consolidation scheme, suit property is
allotted to the plaintiff; and (iii) the proceedings under Section
138 of the MLRC was restricted to the extent of .03-Are.
4. On perusal of the record, it appears that before the Trial
Court no material was produced by the plaintiff to prove his
possession. However, in the Appellate Court the plaintiff produced
receives issued by the sugar factory and local cooperative society.
No case was made out before the Appellate Court to take into
consideration said material. However, even after considering the
said material, in my opinion, delivery of possession by the
authorities under the provisions of the Bombay Prevention of
Fragmentation and Consolidation of Holdings Act, 1947 and
certificate issued under Section 24 of the said Act stands on a
higher footing than the documents produced by the plaintiff.
Moreover, the basis of judgment delivered by the Trial Court was
order passed by the revenue authorities under Section 138 of the
MLRC. Adjudication on the said issue was restricted to the extent
of .03-Are of area. The suit property is 19-Are. Mere pendency of
an application for correction filed by the plaintiff before the
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authorities under the said Act is no ground to discard delivery of
possession by the authorities under the provisions of the said Act.
Therefore, in my opinion, no interference under Article 227 of the
Constitution of India is called for.
5. However, according to the petitioner he has cultivated
sugarcane crop in the said land and, therefore, he be allowed to
take away said crop. The respondents disputes this position.
However, if as of today there is any sugarcane crop standing on the
suit property, the plaintiff is permitted to take away said crop after
it is ripe for harvesting.
6. With this clarification, the writ petition stands dismissed. No
costs.
(AMIT BORKAR, J.)
