Dismissed

Pandurang Gajaram Shelke v. Padmini Govind Galande

Bombay HC18 Mar 2013WP/2740/2013

Case brief

AI extract

What is this about?

The Bench dismissed the writ petition challenging an order by the Ad-hoc District Judge which set aside a temporary injunction in a suit concerning land allotted as compensation for a dam project. The court held that no case for interference under the writ jurisdiction was made out. It noted the appellant challenged the order on fresh grounds not raised before the courts below.

What did the court decide?

The writ petition was dismissed, allowing the impugned order of the District Judge setting aside the temporary injunction to remain in force.

Pandurang Gajaram Shelke Vs Padmini Govind Galande — Property and Title | Bombay HC (2013)

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32.wp.2740.13.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 2740 OF 2013

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Pandurang Gajaram Shelke ..Petitioner

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-Versus-

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Padmini Govind Galande

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..Respondent

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Mr.Ajay A. Joshi, Advocate for the Petitioner.

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None for the Respondent.

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CORAM : R.M. SAVANT, J. DATE : 18^TH MARCH 2013

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P.C.

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1 The writ jurisdiction of the Court is invoked against the order dated 17.12.2012 passed by the learned Ad-hoc District Judge, Pandharpur by which order the Misc.Civil Appeal No.107/2010 filed by the Respondent herein came to be allowed and resultantly, the order passed in the application Exhibit 5 for temporary injunction in favour of the Petitioner herein came to be set aside.

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2 The Respondent herein is the step-daughter of the Petitioner. The

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Petitioner has filed the suit in question being Regular Civil Suit No.356/2008 for an injunction restraining the Defendant i.e. the Respondent herein from interfering with his possession in respect of land bearing Gat No.299 admeasuring 1 Hectares and 25 Ares situated at

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Shegaon, Dhumala, Tal. Pandharpur commensurate with new Gat

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S.K.Talekar

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No.294. The said suit property has been allotted to the original Plaintiff of whom the above Petitioner is the Power of Attorney, as a Project Affected of the Ujani Dam Project. After the death of the husband of the Original Plaintiff-Janabai, the names of said Janabai and her two daughters i.e. Kerabai and Padmini i.e. the Respondent herein were entered in the Revenue Record. It appears that the lands in two villages i.e. Wangi and Dhokari were acquired for the said Ujani Dam Project and for the said acquisition, the Original Plaintiff was allotted the suit property i.e. Gat No.299 as a Project Affected Person. The State Government sought to take action in respect of the said allotment made to the Original Plaintiff as it seems that the State Government was of the opinion that the Original Plaintiff was not entitled to any allotment as a Project Affected

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Person. The State Government it seems accordingly called upon the Plaintiff to hand over possession of the land allotted to her. This resulted in the Plaintiff filing a suit being Regular Civil Suit No.19/1984 for seeking a declaration and injunction in respect of the land which was allotted to her as a Project Affected Person. The said suit came to be decreed and the declaration and injunction as sought for by the Plaintiff was granted to her. The matter was carried in Appeal by the State. The Appeal came to be dismissed. Hence the decree in so far as the declaration of possession of the Plaintiff in respect of the said land has become final and binding.

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3 In the context of the present proceeding what is relevant to note is that in the said suit being Regular Civil Suit No.19/1984 the fact that the daughters of the Plaintiff i.e. Kerabai and the Respondent herein who is her step-daughter were co-sharers was accepted. In fact, the Petitioner above-named was the P.W.1 in the said suit and who had deposed extensively as regards the holding of the Plaintiff’s husband and thereafter the holding of the Plaintiff and her daughters. The P.W.1 categorically stated in his evidence that in respect of the land which was acquired, they were co-sharers with the Plaintiff.

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4 In the present suit, the Plaintiff filed an application for temporary injunction The Trial Court allowed the said application inter-alia on the ground that it is the Plaintiff whose name is entered in the Revenue Record i.e. the 7/12 extract and the presumption would therefore be that the Plaintiff is in possession and therefore the said possession is required to be protected. The Trial Court therefore by its order dated 30.10.2010 allowed the said application for temporary injunction.

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5 The aggrieved Defendant i.e. the Respondent herein-Padmini Galande carried the matter in Appeal. The Appellate Court, addressed the issue of the entitlement of the Plaintiff to the relief of temporary injunction on the touchstone of the previous proceedings being Regular

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S.K.Talekar

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Civil Suit No.19/1984. In the teeth of the stand taken by the Plaintiff in the said proceedings that Padmini was a co-sharer with the Plaintiff, the Lower Appellate Court came to a conclusion that the order passed by the Trial Court granting temporary injunction against a co-sharer required to be interfered with. The Lower Appellate Court as can be seen from the impugned order has adverted to the decree passed in the said Regular Civil Suit No.19/1984 and the confirmation of the said decree by the Appellate Court. The Lower Appellate Court having regard to the said fact held that the Plaintiff could not deny that Padmini was her step daughter and that she was a co-owner. As indicated above, the Lower Appellate Court has by the impugned order allowed the Appeal and set aside the injunction granted vide the order passed on Exhibit 5.

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6 The learned counsel appearing for the Petitioner Mr.A.A.Joshi would contend the fact that Padmini was allotted some other land as Project Affected Person in view of the acquisition of lands for the Ujani Dam Project has not been considered by the Lower Appellate Court. In my view it is not possible to entertain the said submission on behalf of the Petitioner in view of the fact that no such contention was raised before the Courts below. Before the Courts below the matter proceeded on the denial of the relationship by the Plaintiff between her and the Defendant i.e. Padmini.

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32.wp.2740.13.doc

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7 Having heard the learned counsel for the Petitioner and having perused the impugned order, no case for interdiction in the writ jurisdiction is made out.

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The Writ petition is accordingly dismissed.

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(R.M. SAVANT, J.)

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S.K.Talekar

Pandurang Gajaram Shelke v. Padmini Govind Galande

Case brief

What is this about?

What did the court decide?

Pandurang Gajaram Shelke v. Padmini Govind Galande

Case brief

What is this about?

What did the court decide?

What the court decided

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