Bombay High Court
Pawanputra Janjivan Samasya Bhumi ... vs Suresh Namdeorao Barsagade on 10 January, 2025
2025:BHC-NAG:853
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 4622 OF 2021
Pawanputra Janjivan Samasya Bhumi
Vikas Gruh Nirman Sanstha Maryadit,
Nagpur through its President .. Petitioner
Shri Suresh Gulabrao Choudhari age : (Original Plaintiff)
52 years, Occ : Business, R/o Ayodhya
Nagar, Near Sai Mandir, Nagpur
Versus
1) Shri Suresh Namdeorao Barsagade
age : 35 years, Occ : Labour,
2) Smt Tarabai wd/o Harichandraraoji .. Respondents
Kawale, age : 65 years, Occ : Nil, (Original Defendants)
Both R/o Hudkeshwar (Kh), Post Pipla,
Tah. and Dist. Nagpur
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Mr. Shailesh Sitani, Advocate for Petitioner.
Mr. H.R.Prajapati, Advocate for respondents.
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CORAM : ABHAY J. MANTRI, J.
DATED : JANUARY 10, 2025
ORAL JUDGMENT
Rule. Rule is made returnable forthwith. Heard finally,
with the consent of the learned counsel, appearing for the parties.
(2) The petitioner/original plaintiff feeling aggrieved by the
judgment and order dated 11/02/2020 passed by learned District
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Judge - 15 and Additional Sessions Judge in M.C.A.No.230/2019,
thereby allowed the appeal filed by the original defendants/respondents
and quashed the order dated 23.09.2019 passed by the learned trial
Court below Exh.5 in R.C.S.No.1279/2018, has filed this petition.
In brief, the facts are as under:-
(3) The petitioner Housing Society claims that it has
purchased agricultural land in Khasra No.90/2, admeasuring 1H, at
village Hudkeshwar (for short- 'suit premises"). It carved out a layout
on the said land and sold plots to the respective members/purchasers.
On 15/06/2018, the respondents/defendants tried to disturb its
peaceful possession. Therefore, it has filed suit for perpetual
Injunction, wherein filed an application for a grant of temporary
injunction to restrain the respondents/defendants from obstructing the
suit premises till the disposal of the suit.
(4) The respondents/original defendants oppose the claim of
the petitioner and contend that based on the false documents, the
petitioner tried to take forcible possession of their plot No.65. It is also
claimed that based on the sale deed dated 30/10/1999, they have got
ownership as well as possessory right over the plot No.65. They have
also constructed house on the said plot. However, under the garb of the
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sale deed, the petitioner is claiming their possession over plot No.65,
and therefore, they have prayed for dismissal of the petition.
(5) After considering the rival contentions, the learned trial
Court granted an injunction in favour of the petitioner/original plaintiff
and thereby restrained the respondents/defendants from causing
obstruction and disturbance to its peaceful possession over plots No.25
and 26.
(6) Being aggrieved by the said order, the respondents/
defendants had preferred Misc. Civil Appeal No.230/2019. However, the
learned appellate Court reversed the said finding, holding that
petitioner Housing Society failed to prove prima facie case, as well as
observed that until and unless both the parties adduced their evidence,
it cannot be ascertained as to whether the disputed land is plots No.25
and 26 or plot No.65 and therefore, allowed the appeal and quashed
the order passed by the trial court below application Exh.5 for a grant
of temporary injunction. The petitioner/original plaintiff Society has
been aggrieved by the same and preferred this petition.
(7) Mr. Shailesh Sitani, learned Counsel for the petitioner,
vehemently contended that the respondents are not claiming their
rights over plot Nos.25 and 26 and, therefore, on that ground alone,
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the petitioner is entitled to the relief as prayed. The learned trial Court
has rightly considered the said fact, discussed it in detail, and held that
the petitioner is not claiming that plots No. 25 and 26 correspond to
plot No.65 and, therefore, granted a temporary injunction. However,
the learned appellate Court erred in observing that the boundaries
mentioned in the sale deed correspond with the area claimed by the
respondents and plots No.25, 26 and 65 are in the same layout. They
are not adjacent to each other; therefore, it observed that until and
unless both parties adduced their evidence, it could not be ascertained
whether the disputed land is plot Nos.25 and 26 or plot No.65. The said
finding appears contrary to facts on record. Therefore, the said finding
cannot be sustained in the eyes of the law. Hence, he urged for
allowing the petition by setting aside the impugned order. Hence, he
prayed for allowing the petition.
(8) Per contra, learned counsel for the respondents
strenuously argued that the learned appellate Court has rightly
considered the respondents' claim and held that the petitioner is not
entitled to the relief as claimed and, therefore, no interference is
required. He further drew my attention to the layout plan, which is part
and parcel of the plaint, and submitted that said layout plan was
prepared in respect of Khasra No.90 and not 90/2; therefore, the
petitioner/plaintiff Society is not entitled to claim relief based on the
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said layout plan. Moreover, the layout plan is not authenticated or
sanctioned; therefore, it is not helpful for the petitioner to claim their
rights based on the said layout. Consequently, he submitted that no
interference is required in the judgment and order of the appellate
Court. Hence, he urged for the dismissal of the petition.
(9) I have appreciated the rival contentions of the parties
and perused the impugned orders and records.
(10) It is pertinent to note that the defendants have not
pleaded that plots No.25 and 26 correspond to plot No.65 or Khasra
No.90 is converted into Khasra No.90/2 and therefore, his alleged plot
No.65 comes under the Khasra No.90/2. Besides, they do not claim
that the Petitioner Society is claiming its right over plot No.65 under
the garb of plots No.25 and 26.
(11) On a specific query put to the learned counsel for the
respondents/defendants, he failed to point out from the record that his
plot No.65 or Grampanchyat House No.65 is located in Khasra No.90/2.
However, he fairly admitted that the respondents/original defendants
have no concern with the layout plan demarcated by the petitioner
Housing Society in Khasra No.90/2. Still, they claim their right solely
based on the sale deed, which Bhimrao Sahadeo Bawangade executed
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on 30/10/1999 and entries in Namuna 8 of Grampanchayat. Perused
the same, prima facie, it appears that by said sale deed, respondent
No.2 Tarabai purchased House No.65 in Khasara No.90. Similarly, the
Namuna 8 produced by him denotes that the name of respondent No.2
Tarabai is recorded as owner and possessor in respect of
Grampanchayat House No.65. It is pertinent to note that petitioner
Housing Society is claiming that plot Nos.25 and 26 are the open plots,
no construction exists on the said plots. On the contrary,
respondents/defendants claim that they have constructed a house on
plot No.65 of Grampanchayat in khasra No.90.
(12) Furthermore, in the layout plan, it is mentioned that the
petitioner Society demarcated or carved out plots in Khasara No.90/2,
but learned counsel for the defendants has fairly admitted that they
have no concern with the layout of the petitioner Society. It seems that
the petitioner is claiming rights with respect to plots No.25 and 26, as
shown in the Society's layout. Notably, the petitioner is claiming its
right based on the sale deed. The petitioner Society has also produced
a copy of the 7/12 extract of Khasara No.90/2 on record, wherein the
Society's name has been recorded as owner and possessor of the 1H
land. In Khasara No.90/2, the respondents' names do not appear as
owners or possessors. If respondent's plot No.65 is located in Khasara
No.90/2, then respondent No.2's name would have been recorded in
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the 7/12 extract of Khasara No.90/2. Also, the respondents/defendants
must have produced documents concerning the same, but they failed
to show that plot No.65 is located in Khasara No.90/2.
(13) It is pertinent to note that the Petitioner Society is
claiming relief based on the sale deed and layout, which was carved out
by it in Khasara No.90/2. The respondents/defendants have not
claimed any relief regarding the layout plan. Their grievance is that the
petitioner Housing Society, based on the false and fabricated
documents claiming its right over plot No.65. However, the defendants
have not produced any material to demonstrate or to substantiate their
defence. If Petitioner Society were claiming right over plot No.65, then
the respondents/defendants would have mentioned the fact in the
written statement; they might have denied it. Non-pleading the fact
that plots No.25 and 26 correspond to plot No.65 leads to drawing
adverse inferences against the defendants.
(14) The learned Trial Court, after considering the documents
on record in para 6, held that the latest 7/12 extract produced on
record shows that the plaintiff Housing Society is in possession of the
said layout plan and same is situated in Khasara No.90/2 and not in
Khasara No.90 in which the defendants are claiming that their plot
No.65 is located. Therefore, it granted the injunction. The order passed
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by the Trial Court was well-reasoned. On the contrary, the learned
appellate Court has not considered the said fact and erred in reversing
the well-reasoned order, observing that the defendants' prima facie
showed their possession over the disputed land. The said observation
primarily appears contrary to the facts on record.
(15) In addition, the petitioner Society is claiming right over
the open plot; on the contrary, the respondents claim that they have
constructed a house on their plot. In such circumstances, it cannot be
said that the petitioner is claiming relief over plot No.65. Therefore, the
findings recorded by the learned appellate Court appear to be contrary
to the facts on record, as well as the settled position of law and those
findings cannot be sustained in the eyes of the law.
(16) In the aforesaid background, it appears that the learned
appellate Court erred in holding that to ascertain as to whether the
disputed land is plot Nos.25,26 or plot No.65. The learned appellate
Court has not considered the fact that the petitioner Society is not
claiming the relief over the plot No.65, but claiming against the plot
Nos.25 and 26, which are located in the Housing Society's layout plan
in Khasara No.90/2 and not in Khasara No.90. Therefore, the said
finding is liable to be quashed and set aside.
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(17) As a result, I deem it appropriate to allow the present
petition in the following terms:-
1. The writ petition is allowed.
2. The impugned judgment and order dated 11/02/2020
passed by the learned District Judge-15 Nagpur in
M.C.A.No.230/2019 is hereby quashed and set aside,
and the order dated 23/09/2019 passed by the learned
14th Jt. C.J.S.D. Nagpur, below Exh.5 in R.C.S.
No.1279/2018, is hereby confirmed.
3. No order as to costs.
4. Rule is made absolute in the above terms.
5. Inform the concerned Courts accordingly.
[ ABHAY J. MANTRI, J. ]
KOLHE
Signed by: Mr. Ravikant Kolhe PAGE 9 OF 9
Designation: PA To Honourable Judge
Date: 28/01/2025 17:34:33
