Vilay Ganpat Pavshe And Ors vs Santosh Vasu Shetty And Ors
2024 Latest Caselaw 24841 Bom

Bombay High Court

Vilay Ganpat Pavshe And Ors vs Santosh Vasu Shetty And Ors on 27 August, 2024

Author: Amit Borkar

Bench: Amit Borkar

2024:BHC-AS:34360
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                         Shabnoor
                                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                            CIVIL APPELLATE JURISDICTION

                                                WRIT PETITION NO.8078 OF 2021

           Digitally
           signed by
           SHABNOOR
  SHABNOOR AYUB
                         Vilay Ganpat Pavshe & Ors.                     ... Petitioners
  AYUB     PATHAN
  PATHAN   Date:
           2024.08.28
           10:46:44
           +0530
                                    V/s.
                         Santosh Vasu Shetty & Ors.                     ... Respondents


                         Mr. Balkrishna Joshi i/by Mr. Vishwanath Sakharam
                         Paradkar for petitioners.
                         Mr. Mandar Limaye for respondent Nos.1 to 3.


                                                         CORAM    : AMIT BORKAR, J.

                                                         DATED    : AUGUST 27, 2024
                         P.C.:

1. The petitioners, who are the original plaintiffs, challenge the judgment and order passed by the Appellate Court, which allowed the respondents' miscellaneous civil appeal, effectively resulting in the rejection of the interim application filed by the petitioners.

2. The petitioners instituted Special Civil Suit No. 390 of 2020, seeking a declaration that the registered agreement dated 16 June 2004, executed by the petitioners in favor of the defendants, be declared null and void, along with a consequential relief of injunction. The petitioners allege that the defendants, by practicing fraud, inserted the digit "1" before the digit "2" in the sale deed, thereby causing the sale deed to be executed for 12R of land. According to the petitioners, the defendants, through fraudulent means, obtained execution of a sale deed for 12R of

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land, which exceeds the land agreed upon by the parties. Consequently, the petitioners seek a declaration that the sale deed concerning the 12R land be declared null and void.

3. The defendants contested the suit by filing a written statement, asserting that they had validly purchased 12R of land from the plaintiffs, and, therefore, there was no question of fraud being practiced upon the petitioners.

4. The Trial Court, after hearing both sides, granted the petitioners' application for a temporary injunction, restraining the respondents from creating third-party rights over the suit property, specifically the 12 Guntha area described in the map annexed at serial No. 8 to the temporary injunction application. However, the Appellate Court, through the impugned order, allowed the defendants' appeal, holding that the plaintiffs failed to comply with the provisions of Order 7 Rule 3 of the Code of Civil Procedure, 1908.

5. I have heard the learned advocates for the respective parties.

6. Upon reviewing the record and considering the submissions made on behalf of both parties, it appears that the initial dispute between the parties pertains to the exact area sold by the plaintiffs to the defendants under the sale deed dated 16 June 2004. However, the description of the suit property in the sale deed is significant in the facts of the case. The boundaries of the property as mentioned in the sale deed executed in favor of the defendants are as follows:

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East: Shri Krushnalila Hotel.

West: Open plot owned by Shri Bhargav Khule.

South: Agricultural land of Shri Suresh Joga Patil.

North: Shil Kalyan Road.

7. Once the boundaries of the suit property are not in dispute, it is well-settled that in the case of a discrepancy between the area and the boundaries, the boundaries shall prevail. Therefore, the rights of the parties shall be governed by the boundaries described in the sale deed. It is thus evident that the defendants have become the owners of the property as described by the boundaries in the sale deed.

8. In view of the aforementioned facts, the petition is disposed of with the following order:

(a) The defendants shall be entitled to continue with possession and to deal with the property described within the boundaries mentioned in the sale deed executed in their favor dated 16 June 2004. However, if the area in possession of the defendants exceeds the area described by the boundaries in the sale deed dated 16 June 2004, the defendants shall not create third-party rights over such excess area until the disposal of the suit.

9. With the aforementioned clarification, the writ petition stands disposed of on the above terms. No order as to costs.

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10. It is open for the parties to apply for the expeditious disposal of the suit.

(AMIT BORKAR, J.)