Partly allowed

The State of Mahrashtra and Ors. v. Hiralal Mahadu Magre and Ors.

Bombay HC22 Feb 2011WP/832/2011

Case brief

AI extract

What is this about?

This High Court of Bombay writ petition challenged an appellate order granting an injunction to protect possession in a civil suit. The court found no substantial question of law, held the suit merits should be tried on record material, and expeditied the civil suit to be decided within one year while restraining the respondents from altering the property.

What did the court decide?

The writ petition is partly allowed; the civil suit is expedited for decision within one year; a restraint is imposed on the respondents not to alter the suit property or create third-party interest.

The State of Mahrashtra and Ors. Vs Hiralal Mahadu Magre… — Landlord and Tenant | Bombay HC (2011)

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(1)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD.

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WRIT PETITION NO. 832 OF 2011

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The State of Maharashtra, Through Tahsildar, Aurangabad.

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The Collector, Aurangabad.

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The Sub-Divisional Officer, Aurangabad.

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The Divisional Commissioner, Aurangabad.

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The Deputy Secretary, through State of Maharashtra, Revenue and Forest Division, Mantralaya, Mumbai-32.

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.. Petitioners (Original defendant nos.1 to 3, 5 and 6, respectively)

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versus

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Hiralal s/o. Mahadu Magre, Age : 65 years, Occupation : Agriculture, R/o. Chikalthana, Taluka & District : Aurangabad.

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Subhash s/o. Sahebrao Thokal, Age : 40 years, Occupation : Agriculture, R/o. as above.

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(2)

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Dattu s/o. Hiralal Magre, Age : 35 years, Occupation : Agriculture, R/o. as above.

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Prakash s/o. Sahebrao Thokal, Age : 36 years, Occupation : Agriculture, R/o. as above.

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Sanjay s/o. Eknath Navgire, Age : 40 years, Occupation : Agriculture, R/o. as above.

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Shaikh Hasan s/o. Sk. Gaffar, Age : 40 years, Occupation : Agriculture, R/o. as above.

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.. Respondents (Original plaintiff

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The Chairman, (Original plaintiff Vaijanathrao Kale nos.1 to 6 & Samarth Pratisthan, respondent/ CIDCO, N-7, defendant no.4, Aurangabad. respectively)

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Mr. S.V. Kurundkar, Additional Government Pleader, for the petitioners.

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Mr. A.M. Nagarkar, Advocate, for respondent nos.1 to 6.

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(3)

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CORAM : B.P. DHARMADHIKARI, J.

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DATE : 22ND FEBRUARY 2011

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ORAL JUDGMENT :

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1. Heard learned AGP Mr. Kurundkar, for the petitioners, and Adv. Mr. Nagarkar, for respondent nos.1 to 6.

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2. Rule. Rule made returnable forthwith. Taken up for final hearing by consent of parties.

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3. As no order adverse to the interest of respondent no.7 is being passed, service of notice upon Rule on the said respondent is dispensed with.

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4. By the present petition, the petitioners have challenged the judgment and order dated 24-11-2010, passed by the learned District Judge-5, Aurangabad, in Misc. Civil Appeal No. 175/2010. By the impugned order, the appellate court has set aside the order dated 20-9-2010, passed by the learned Joint Civil Judge (Senior Division), Aurangabad, below Exhibit 5 in Regular Civil Suit No. 937/2008.

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5. Learned AGP Mr. Kurundkar, for the petitioners,

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(4)

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points out that the appellate court has erroneously protected possession of respondents though Civil Suit filed by them is not maintainable and their possession is not shown to be prior to 1991.

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6. Adv. Mr. Nagarkar, for respondent nos.1 to 6, on the other hand, points out observations of appellate court at page 66 (in paragraph 6 of its judgment) to urge that grant of injunction is in accordance with law.

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7. With the assistance of both the learned Counsel, I have perused relevant papers. The appellate court has found that as per panchanama conducted by Talathi on 15-9-2008, encroachment of present respondents was noticed. At that time, he learnt that the encroachment was since 15 to 20 years. Talathi has also reported that about said encroachment, there was a report by then Talathi in 1995 and also a complaint was lodged in Police Station. Similarly, the cultivation after encroachment, in the years 2005-06, 2006-07 and 2007-08, is also pointed out by him and he has communicated to Tahsildar, that these encroachers had disclosed that similar report and panchanama was then drawn.

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8. The appellate court has in the background of this

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(5)

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panchanama, noted that at least during those years, names of encroachers could have been mentioned in 7/12 extracts as persons in cultivation. Thus, importance given to absence of their names in 7/12 extracts by the trial court is found to be misplaced by the appellate court. It has further found that the documents produced clearly reveal that they were in possession since 1988.

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9. Thus, findings are prima facie recorded on the basis of the material on record and cannot be labelled either as erroneous or perverse.

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10. The contention of the petitioners, that possession is after 1990 or then, suit to enforce the Government Resolution cannot be filed, cannot be examined at this stage. The petitioners are trying to protect their possession by pointing out a Government policy of allotting lands to landless persons if they are in possession from 1978 onwards and till 1990.

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11. Merits of the matter can be gone into by the trial court. In this view of the matter, it would be appropriate to expedite hearing of the suit.

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12. In the result, the petition is partly allowed.

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(6)

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(i) Looking to the nature of controversy, proceedings in Regular Civil Suit No. 937/2008 are expedited and the court of Civil Judge (Senior Division), Aurangabad, is directed to decide the suit itself as expeditiously as possible and in any case, within a period of one year from the date of communication of this order to it.

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(ii) The present respondent nos.1 to 6 shall not, in the meanwhile, change or alter the nature of the suit property or create any third party interest or encumbrance upon it, in any way. (iii) Writ Petition is, therefore, partly allowed and the above restraint on the rights of respondent nos.1 to 6 in the order of the appellate court is added to it.

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(iv) Trial Court shall decide the suit uninfluenced by the appellate order or this order and in its own wisdom as per material brought on record by parties.

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13. Rule is made absolute accordingly. No costs.

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( B.P. DHARMADHIKARI )

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bgp/wp832

The State of Mahrashtra and Ors. v. Hiralal Mahadu Magre and Ors.

Case brief

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The State of Mahrashtra and Ors. v. Hiralal Mahadu Magre and Ors.

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