Bombay High Court
Lokappa Sangappa Bagali vs Mahadevappa Ishwarappa Bagali And Ors on 31 January, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-AS:6082
kishor 1/5 57 SA 53 of 2022 (C).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 53 OF 2022
WITH
INTERIM APPLICATION NO.400 OF 2022
Lokappa Sangappa Bagali ...Appellant.
Versus
Mahadevappa Ishwarappa Bagali And Ors. ...Respondents
....
Mr. Tejal Shrikant Ingale, for Appellant.
Mr. P. S. Pise, for Respondent No.1.
....
CORAM : SANDEEP V. MARNE, J.
DATED : 31 JANUARY 2024.
P.C. :
By this Appeal, Appellant challenges Judgment and Decree dated
18 February 2020 passed by District Judge, Sangli dismissing Regular Civil
Appeal No.69 of 2018 and confirming decree dated 23 January 2018 passed
by Civil Judge, Junior Division, Sangli in Regular Civil Suit No.50 of 2009.
2. Plaintiff filed RCS No.50 of 2009 for injunction in respect of
land admeasuring 2 H 75 R. In the Suit, Defendant appeared and filed
counter-claim contending that the Plaintiff was disturbing possession of
kishor 2/5 57 SA 53 of 2022 (C).doc
Defendants in respect of land in excess of 01 H 63 R. The Trial Court has
proceeded to dismiss Plaintiff's suit and has allowed counter-claim filed by the
Defendants injuncting Plaintiff from interfering with possession of
Defendants in respect of land of the Defendants except area of 01 H. 63 R
and encroached portion 60 ft. X 60 ft. belonging to the Plaintiff. The first
Appellate Court confirmed the decree passed by the Trial Court.
3. I have heard Mr. Ingale, the learned counsel appearing for
Appellant and Mr. Pise, the learned counsel appearing for Respondent Nos.1
to 9.
4. After having considered submissions canvassed by the learned
counsel appearing for parties, it is seen that Plaintiff's claim for possession of
land admeasuring 2 H. 75 R is premised on alleged partition which took place
in the year 1965. However, admittedly in Revenue Record, Plaintiff's name
was mutated in respect of area admeasuring 01 H. 63 R. He did not take any
steps in respect of mutation of less area than the one allegedly allotted to him
in the partition. For the first time in the year 2008, mutation entry No.2326
certified on 15 October 2008 by which the area of Plaintiff's land was
increased from 01 H. 63 R to 02 H. 73 R. This was apparently done on
account of dismissal of Second Appeal arising out of RCS No.40 of 1976 filed
kishor 3/5 57 SA 53 of 2022 (C).doc
by predecessor of Defendants for removal of encroachment of area
admeasuring 60 ft. X 60 ft. by Plaintiff. Plaintiff thus, took advantage of
dismissal of the Second Appeal arising out of RCS No.40 of 1976 and got the
area of his land increased from 01 H. 63 R to 02 H. 73 R by effecting
mutation entry No.2326 of 2008. The said mutation entry was immediately
cancelled by the Sub-Divisional Officer by Order dated 02 May 2009 and
said cancellation has been attained finality by the Order of Additional
Collector. Thus, as on the date of filing of the Suit, the area reflected in respect
of Plaintiff's land was only 01 H. 63 R. Baring that period from 15 October
2008 to 07 March 2009, the area of land in possession of Plaintiff was always
shown as 01 H. 63 R.
5. Mr. Ingale has strenuously contended that RCS No.40 of 1976
filed by predecessor of Defendant for recovery of encroached area of land
against Plaintiff came to be dismissed and decree in RCS No.40 of 1976 has
attained finality. It is sought to be suggested by Mr. Ingale that the land in
respect of which obstruction is caused by Defendants giving rise to cause of
action for filing of RCS No.50 of 2009, is the same in respect of which RCS
No.40 of 1976 was filed. I am unable to agree. Order of the Trial Court would
indicate that Court Commissioner was appointed in RCS No. 40 of 1976,
kishor 4/5 57 SA 53 of 2022 (C).doc
who gave report that the measurement of encroached portion was only 60 ft.
X 60 ft. Thus, it cannot be stated that RCS No.40 of 1976 was filed by
predecessor of the Defendants in respect of area admeasuring 02 H. 75 R.
The Trial Court has already protected Plaintiff's possession over the
encroached area of 60 ft. X 60 ft. in addition to his own area of 01 H. 63 R
while allowing the Defendants' counter-claim. It also appears that Plaintiff has
given a specific admission during the cross-examination that land in his
possession appears to be 04 Acre and 01 Gunta which more or less
corresponds to area admeasuring 01 H. 63 R.
6. Considering overall conspectus of the case, I am of the view that
no serious error can be traced in the concurrent findings of facts against
Appellant. No substantial question of law is involved in the Appeal. Appeal is
accordingly rejected. Since the Appeal is rejected nothing survives in the
Interim Application and it is also disposed of.
Mr. Ingle would submit that observations made by Trial Court, First
Appellate Court and by this Court, about possession of Plaintiff's land
admeasuring 02 H. 75 R, would not come in the way of Plaintiff while
claiming title in respect of entire land admeasuring 02 H. 75 R. Since the
Plaintiff's Suit was only for injunction, involvement of issue of title any
kishor 5/5 57 SA 53 of 2022 (C).doc
observations made by the Trial Court, First Appellate Court or by this Court
would not come in the way of Plaintiff while deciding any claim raised by the
Plaintiff in respect of title.
SANDEEP V. MARNE, J.
KISHOR by KISHOR
VISHNU KAMBLE
Date:
KAMBLE 2024.02.08
11:35:01 +0530
