Dismissed

Mahavir Bharma Chougule and Ors. v. Charudatta Kallappa Chougule

Bombay HC16 Jun 2007WP/3670/2006

Case brief

AI extract

What is this about?

In a writ petition under Article 227, the High Court examined a dispute over a permanent injunction involving common structures. The court unanimously agreed with the lower appellate court's decision that the petitioner had not proved the pillar and water channel were common at that time.

What did the court decide?

The petition was disposed of without granting any new relief, affirming the lower appellate court's judgment.

Mahavir Bharma Chougule and Ors. Vs Charudatta Kallappa… — Property and Title | Bombay HC (2007)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CIVIL APPELLATE JURISDICTION

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 WRIT PETITION NO.3670 OF 2006

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 Mahavir Mharma Chougule & Ors. .. Petitioners
 Versus
 Charudatta Kallappa Chougule .. Respondent.

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 Mr.S.V.Sadavarte for petitioners
 Mr.R.S.Wagh i/b. Tejas Ingale for respondent.

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 CORAM : S.C.DHARMADHIKARI, J.

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 DATE : 16th June 2007.

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 P.C.

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 . This petition under Article 227 of the
 Constitution of India is by original defendants
 in R.C.S.No.76 of 2004 which is filed by the
 respondent for perpetual injunction restraining

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 the petitioner from in any manner obstructing him
 from making any construction on C.T.S.No.32 which

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 according to him has been allotted/purchased as
 part of his share. Petitioners contend that they
 are owners of C.T.S.No.33, 34, 37 and 38 which
 are situated on southern and western side of the

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 suit property.

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 2. In the application for temporary

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 injunction preferred by the respondent -

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 plaintiff before the trial court, an injunction

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 was granted restraining defendants (petitioners

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 before me) from obstructing plaintiff from
 carrying on construction over C.T.S.No.32.
 However, at the same time, the respondent was
 directed not to demolish, according to trial
 court, the common stone pillar of the Gate and

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 the water channel while making construction.

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 3. Respondent challenged the second

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 direction of the trial court putting restraint

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 upon him by filing an appeal which was allowed by

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 the lower appellate court on 8th March 2006 and

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 the direction came to be set aside.

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 4. Aggrieved by this order of the lower
 appellate court, petitioners original defendants
 have approached this Court.

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 5. Mr.Sadavarte learned Advocate appearing
 for petitioner contends that it is no doubt true
 that the plaintiff has purchased 1/5th share but
 the pillar is common so also the water channel.
 If while making construction the respondent -
 plaintiff in any manner breaks or demolishes the
 pillar, there is every likelihood that
 petitioners would be prejudiced in their
 enjoyment of the property, which has come to
 their share. Further, they would not be able to
 enjoy the same, if the course of water is
 obstructed by removing water channel. In
 substance, the contention is that both pillar and
 the water channel is common to all properties
 which are adjoining each other.

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 6. After perusing the order of the lower
 appellate court, it is apparent that the lower
 appellate court was pursuaded to take this view
 on the strength of the P.R.Card of C.T.S.No.31
 and 32, copy of City Survey map and the Court
 Commissioner’s report. The lower appellate
 court, therefore, observed that as far as
 existence of the common pillar is concerned,
 petitioner - original defendants have not
 produced any evidence to show that the pillar is
 common. In these circumstances and they having
 not filed any application under Order XXXIX Rule
 1 in respect of pillar or a counter claim, that,
 it is not open to them to seek any direction
 against plaintiff in the his application for
 temporary injunction.

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 7. Once such is the view taken by the lower
 appellate court and that too, on materials then
 produced, I am of the view that no prejudice

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 would be caused to petitioners at all. If the
 petitioners are still of the view that their
 enjoyment of properties which have come to their
 share is adversely affected or that they have
 material with them which would demonstrate grave
 and serious prejudice, then it is open to them to
 apply to trial court afresh by placing all
 relevant material on record to establish that the
 pillar is common so also the water channel. The
 order under challenge or the observations therein
 would not preclude the petitioners from so
 applying in future. Needless to state that if
 such an application is preferred the trial court
 to consider the same on merits and in accordance
 with law.

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 8. In the meanwhile, trial court,
 considering the advanced age of respondent and
 some of the petitioners shall endeavour and
 dispose of the suit itself expeditiously.
 Petition disposed of accordingly.

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 (S.C.Dharmadhikari, J)

Mahavir Bharma Chougule and Ors. v. Charudatta Kallappa Chougule

Case brief

What is this about?

What did the court decide?

Mahavir Bharma Chougule and Ors. v. Charudatta Kallappa Chougule

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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