Balasaheb Deelip Deshmukh vs Kalyan Mukund Deshmukh
2025 Latest Caselaw 5924 Bom

Bombay High Court

Balasaheb Deelip Deshmukh vs Kalyan Mukund Deshmukh on 20 September, 2025

                              1                     11-SA.351-25+1.odt


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    BENCH AT AURANGABAD

               11 SECOND APPEAL NO. 351 OF 2025
                              WITH
               CIVIL APPLICATION NO. 135 OF 2025
                         IN SA/351/2025

                 BALASAHEB DEELIP DESHMUKH
                           VERSUS
                  KALYAN MUKUND DESHMUKH

                               ...
 Advocate for Appellant : Mr. P. M. Shinde h/f Mr. Jadhav P. B.
 Advocate for Respondent Nos.1 & 2 : Mr. B. A. Shinde h/f Mr.
                        Ashok B. Tele.
                               ...

                           CORAM : SHAILESH P. BRAHME, J.

DATE : 20.09.2025

PER COURT :-

1. Heard learned counsel for the appellant.

2. Second appeal is arising out of conflicting findings of

facts.

3. The Trial Court decreed the suit of mandatory injunction

and delivery of possession of encroached 45 R. of land with

mesne profit. The decree is reversed by Lower Appellate Court

which is questioned in the second appeal.

4. Learned counsel Mr. B. A. Shinde opposes the appeal.

5. Following substantial questions of law need to be

considered in the second appeal :

2 11-SA.351-25+1.odt

(i) Whether the findings recorded by Lower Appellate Court especially in paragraph No.47 are patently illegal and perverse when amendment was already carried out by the plaintiff in the Trial Court itself after the report of Court Commissioner and it is not a case of any subsequent cause of action ?

(ii) Whether Lower Appellate Court is justified in reversing the decree passed by the Trial Court when the report of Taluka Inspector of Land Record and the Court Commissioner concurrently disclosed encroachment at the instance of respondents and no convincing reasons are cited for discarding the reports ?

(iii) Whether impugned judgment is sustainable in view of law laid down by High Court in the matter of Vijay Shrawan Shende and others Vs. State of Maharashtra and others, in Second Appeal No.97 of 2009 ?

(iv) Whether impugned order and judgment is sustainable in the wake of Section 83 of the Indian Evidence Act ?

6. Admit.

7. Learned counsel Mr. Shinde holding for Mr. Tele waives

service of notice for respondent Nos.1 and 2.

3 11-SA.351-25+1.odt

8. Call for Record and Proceedings from the concerned

Court.

Civil Application No.135 of 2025

9. Issue notice to the respondents, returnable on

03.11.2025.

10. Learned counsel Mr. Shinde holding for Mr. Tele waives

service of notice for respondent Nos.1 and 2.

11. This Court has already admitted the second appeal by

formulating substantial questions of law.

12. Pending hearing and final disposal of the second appeal,

the respondents are agent, servants and anybody claiming

through them shall be restrained from creating any third party

interest over the disputed area of the suit land which is in their

possession.

(SHAILESH P. BRAHME, J.)

...

vmk/-