Bhagwan Nathyaba Sarak Vs Keru Bhuja Sarak

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CIVIL APPELLATE JURISDICTION

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 SECOND APPEAL NO. 1250 OF 2004

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 Bhagwan Nathyaba Sarak ... Appellant

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V/s

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 Keru Bhuja Sarak ... Respondent

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 Mr. Uday Warunjikar for the appellant.

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 Mr. Vishwanath Talkute for the respondent.

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CORAM: P.V. KAKADE, J.

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DATED: 23RD AUGUST, 2005

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P.C.:

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 1. Heard learned counsel for both parties. Perused the
 record.

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 2. Rule. Rule made returnable forthwith by consent.

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 3. The appellant has preferred this appeal against the
 judgment and order passed by the Addl. District Judge,
 Satara, dated 14.9.2004 dismissing the appeal and
 allowing the cross-objection of the plaintiff. In
 addition to the relief granted by the Trial Court, the
 appellant was further perpetually restrained from

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 obstructing respondent’s possession in the suit
 properties, either personally or through agents,
 servants, etc.

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 4. The Trial Court, by its order dated 30.3.2001 had
 decreed the suit with direction that the defendant was
 perpetually restrained from ousting the plaintiff from
 the suit land and was also restrained from obstructing
 the plaintiff to take the water of suit wells by
 electric motors fitted on the said wells to the extent
 of his four anna share.

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 5. The plaintiff filed the suit for perpetual
 injunction against the defendants on the ground that he
 was in exclusive possession of four anna share in the
 suit property with right to take water to that extent
 and defendants were obstructing his possession and hence
 perpetual injunction was sought for.

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 6. The learned Trial Judge adjudicated the dispute on
 merits and came to the conclusion that the plaintiff had
 proved his possession over the suit property to his
 title to the extent of four anna share and also proved
 that the defendants had obstructed plaintiff’s
 possession in the suit property and hence the relief of

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 perpetual injunction came to be decreed.

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 The appeal was carried to the lower appellate Court
 along with the cross-objection. The lower appellate
 Court confirmed the decree and dismissed the appeal of
 the defendants and allowed the cross-objection of the
 plaintiff adding the relief to the extent of obstructing
 or disturbing respondent’s possession. Hence the
 present appeal is filed.

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 7. After hearing both parties for some time, it was

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 found that the facts and circumstances involved in the
 dispute were such that the appeal could be disposed of
 finally on merits. Admittedly, a partition suit being
 R.C.S. No. 19 of 2005 in the Court of Civil Judge,
 Jr.Divn., Phaltan is filed by the plaintiff which is
 pending adjudication. In the light of that aspect, both
 parties agreed that plaintiff’s possession to the extent
 of four anna share should be protected pending the
 adjudication of the suit regarding partition of the suit
 properties as it is evident that the entire suit
 properties mentioned in the present suit are owned by
 both parties and were sought to be in joint Vahiwat. Be
 that as it may, the fact remains that both the Courts
 below have accepted the fact that plaintiff is in

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 exclusive possession of his four anna share in the
 entire property with his right to take water from the
 wells to the extent of same share. The only anxiety of
 the plaintiff appears to be that his possession should
 not be interfered with and he should not be ousted from
 the property pending adjudication of the partition suit
 pending in the Trial Court as noted above.

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 8. Therefore, in view of the facts and circumstances,
 it is hereby directed that the appellant-defendants
 shall not obstruct the respondent’s possession in four
 anna share in the suit properties nor he shall be ousted
 from the properties in any manner, as directed by both
 the Courts below. It is clarified that the rights of
 both parties shall be determined in the suit for
 partition which is filed and pending adjudication.

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 The Trial Court is directed to expedite the hearing of
 the partition suit (R.C.S. No. 19 of 2005) pending in
 the Court of Civil Judge, Jr.Divn., Phaltan, Dist.
 Satara and dispose it of as early as possible and at any
 rate by the end of March, 2006 as the written statements
 are filed and the suit is awaiting framing of issues.

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 With these directions, the appeal stands disposed of

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 with no order as to costs. Consequently, Civil
 Application No. 1691 of 2004 also stands disposed of

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 with no order as to costs.

Bhagwan Nathyaba Sarak v. Keru Bhuja Sarak

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Bhagwan Nathyaba Sarak v. Keru Bhuja Sarak

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