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Bombay High Court
Santosh Madhusudhan Potdar vs Group Grampanchayat Nijampur Thr. ... on 5 January, 2026
2026:BHC-AS:50
30-sa-442-2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 442 OF 2021
Santosh Madhusudhan Potdar ...Appellant
Versus
VISHAL Group Grampanchayat Nijampur and Another ...Respondents
SUBHASH
PAREKAR
Digitally signed by
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VISHAL SUBHASH
PAREKAR
Date: 2026.01.05
Mr. Rohit Joshi, for the Appellant.
17:14:19 +0530
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CORAM : SHARMILA U. DESHMUKH, J.
DATE : JANUARY 05, 2026
ORAL ORDER
1. The Appeal has been preferred at the instance of the original
Plaintiff challenging the concurrent findings of fact by the trial Court
and the first Appellate Court by which the Plaintiff's suit seeking
simpliciter injunction came to be dismissed.
2. The facts of the case that the Plaintiff has filed Regular Civil Suit
No. 80 of 2009 against the Defendants in respect of the suit property
Grampanchayat House No. 771 and Gavthan area admeasuring 330.87
sq. mtrs., village Nijampur, Tal. Mangaon on the basis of ownership by
virtue of registered Sale Deed dated 30th November, 1991. The Plaintiff
came with the case that the Plaintiff's name was recorded at the
record of rights and permission was taken from Nijampur
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Grampanchayat on 16th May, 1995 and the Plaintiff has constructed the
foundation on the suit property at which time the husband of
Respondent No. 2 who was the original vendor has caused obstruction.
The Plaintiff had filed Suit No. 50 of 1995 which came to be decreed on
11th June, 1999 which was challenged in Appeal No. 9 of 2000 which
was decided on 10th June, 2004, which reversed the decree dismissing
the Suit. As against which, the Second Appeal is filed before this Court
and is pending. The Plaintiff claimed that despite the same, Defendant
No. 1 passed resolution on 17 th November, 2004 and entered the name
of Ramesh Sud, in the record of rights of the suit property without
giving any opportunity to the Plaintiff by deleting the name of the
Plaintiff. According to the Plaintiff, he had obtained loan from
Goregaon Co-operative Urban Bank to develop the suit property and
the Defendant No. 1 had filed communication with the bank to remove
the entry from record of rights of the suit property.
3. The Plaintiff came with the apprehension that the Defendants
will change the record of rights of the suit property and create third
party rights. Hence, the suit came to be filed for perpetual injunction
against the Defendants from obstructing the peaceful possession as
well as not to create third party rights in the suit property.
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4. The Trial Court framed the relevant issues and after considering
the evidence dismissed the suit as against which Regular Civil Appeal
No. 50 of 2013 came to be filed. The Appellate Court framed the points
for determination as regards the possession of the Plaintiff over the
suit property, the obstruction at the hands of the Defendants, as to
whether the Defendants are trying to change the nature of the suit
property and answered the issues against the Plaintiff.
5. The first Appellate Court re-appreciated the evidence on
record to hold that except bare contention, the Plaintiff has not
produced any record in evidence to show the actual possession of the
suit property since the purchase and noted that it appears that since
1995 the Plaintiff is claiming that his possession is obstructed by the
vendor. The first Appellate Court noted that there is no documentary
evidence produced to show that the Plaintiff had taken permission to
construct the suit property and had also constructed the foundation.
The first Appellate Court further noted that the Plaintiff has not
mentioned any specific act on behalf of the Defendant No. 2 except
the name recorded in the record of rights in the suit property as heir of
the deceased vendor Ramesh Sud and in the absence of any evidence
against Defendant No. 2 that Defendant No. 2 intended to create third
party rights in the suit property, refused to grant perpetual injunction.
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6. Mr. Joshi, learned counsel for the Appellant has taken this Court
through the findings of the trial Court as well as Appellate Court. He
submits that the findings suffers from perversity as the Courts
completely ignored the evidence on record as regards the execution of
the registered Sale Deed which shows the ownership of the Appellant
in respect of the suit property. He submits that the Courts also failed
to take into consideration the earlier round of litigation which is
subject matter of challenge before this Court in view of the
obstruction which was caused by the original vendor husband of
Defendant No. 2. He submits that as the finding suffers from
perversity, the same gives rise to substantial question of law.
7. I have considered the submissions and perused the record.
8. The Plaintiff seeks the relief of injunction against the
Defendants from disturbing the possession of the Plaintiff and from
creating any third party rights in the suit property. The findings of the
trial Court as well as first Appellate Court demonstrates that the issue
as regards the actual possession of the Plaintiff in respect of the suit
property has not been proved by leading cogent evidence. Considering
the relief sought by the Plaintiff of perpetual injunction, restraining
the Defendants from obstructing the possession of the Plaintiff over
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the suit property, it was necessary for the Plaintiff to adduce cogent
evidence to show actual possession of the Plaintiff. Though in the
Plaint, it was pleaded that the Plaintiff had obtained permission for
construction in the suit property and also for construction of
foundation by him on the suit property, the Plaintiff did not produce
any material to substantiate the same. The Plaintiff was therefore in
possession of the best evidence which was available as regards the
construction by him over the suit property which would have
established his actual possession of the suit property. The registered
Sale Deed executed by the Plaintiff in respect of suit property is an
incidental issue of ownership and the Plaintiff to seek protection of his
possession is required to bring evidence showing actual possession,
which is missing.
9. As regards restraining the Defendants from creating any third
party rights, the first Appellate Court has rightly noted that the
Plaintiff has not attributed any act to Defendant No. 2 which would
give rise to an apprehension that Defendant No. 2 is attempting to
create any third party rights in respect of suit property. The change in
the record of rights was only as heir of the deceased vendor Ramesh
Sud. The change in the mutation record sans any evidence of actual
possession is insufficient to give rise to any finding that Defendant No.
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2 is causing any obstruction or that there is intent to create any third
party rights in the suit property.
10. The Trial Court and the first Appellate Court have rightly
appreciated the evidence on record and no perversity is demonstrated.
Hence, no substantial question of law arising in the present case.
11. Second Appeal stands dismissed. Interim Application does not
survive for consideration and stands disposed of.
12. Needless to clarify that this court has examined the validity of
the judgment of Trial Court as well as first Appellate Court qua the
relief of injunction and the same would not come in the way of any
proceeding initiated by the Appellant for challenging the change in
revenue records.
[SHARMILA U. DESHMUKH, J.]
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