Dismissed

Motiram Bapu Guram v. Yashwant Shankar Rawale (Deceased) 1) Manik Yashwant Rawale

Bombay HC27 Mar 2024SA/51/2024

Case brief

AI extract

What is this about?

In appeal, this court rejected the challenge to a decree granting injunction against obstructing possession of suit lands and house. The court held that since defendants admitted no claim, the decree was correct, leaving recovery of off-suit land to separate proceedings.

What did the court decide?

The Second Appeal was rejected leaving open all remedies of the Appellant/Defendants and all contentions in a freshly filed suit.

Motiram Bapu Guram Vs Yashwant Shankar Rawale (Deceased) 1) Manik… — Partition | Bombay HC (2024)

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Neeta Sawant 7-SA-51-2024.docx

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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SECOND APPEAL NO. 51 OF 2024

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Motiram Bapu Guram
V/S.

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} ...Appellant

¶6

1. Yashawant Shankar Rawale,
Since Deceased through Heirs

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A. Manik Yashawant Rawale & Ors.

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} ...Respondents

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Mr. Sudhir Prabhu, for the Appellant.

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Mr. Ashok B. Tajane a/w. Mr. Yogesh Thorat and Mr. H.M.
Khupsare, for Respondent Nos.1A to 1C.

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CORAM : SANDEEP V. MARNE, J.

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Dated : 27 March 2024.

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P.C. :

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1)By this Appeal, the Appellant challenges Judgment and
Order dated 20 July 2016 passed by the District Judge, Sindhudurg,
Oras in Regular Civil Appeal No.38 of 2012. The first Appellate Court
has dismissed Appellant’s Appeal and has confirmed the Decree passed
by the Civil Judge Junior Division, Malwan in Regular Civil Suit No.
101 of 2013.

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2)Plaintiffs filed suit in respect of the landed properties
bearing Survey No. 108, Hissa Nos.5 and 6 and Gram Panchayat House
No. 326 alleging that Defendants were obstructing Plaintiffs possession

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____ Page No. 1 of 4____ 27 March 2024

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Neeta Sawant 7-SA-51-2024.docx

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in respect of the suit lands and the suit house. Defendants appeared in
the suit and filed Written Statement. They did not dispute ownership
or possession of the Plaintiffs in respect of the landed properties bearing
Survey No.108, Hissa Nos.4, 5 and 6. However, so far as house property
No.326 is concerned, Defendants took a defence that the said house was
constructed on Defendants adjoining land bearing Survey No.94, Hissa
No.5. It was Defendants case that Defendants allowed the Plaintiffs to
construct house on their land and accordingly Plaintiffs possession of
land on which House No.326 is constructed, is permissive in nature.

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3)It appears that both the parties pleaded about conduct of
measurements. Plaintiffs asserted in the plaint that suit properties
were measured in the year 1996, whereas, Defendants contended that
there was measurement in the year 2003. However, none of the parties
proved their respective measurements before the Trial Court. During
the course of evidence, Defendants witness admitted that he has no
concern with the suit properties and the suit house. The Trial Court
and the first Appellate Court have accordingly presumed that Plaintiffs
are in settled possession of the suit house and have accordingly
injuncted Defendants from obstructing Plaintiffs possession of suit
lands bearing Survey No.108, Hissa Nos.5 and 6 and Suit House No.326.

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4)I have heard Mr. Prabhu, the learned counsel appearing for
the Appellant and Mr. Tajane, learned counsel appearing for
Respondent Nos.1A to 1C.

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____ Page No. 2 of 4____ 27 March 2024

¶22

Neeta Sawant 7-SA-51-2024.docx

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5)It appears that there was serious dispute amongst the
parties about the exact location at which suit House No.326 is located.
While Plaintiffs contended that the location of the suit house is within
the suit lands bearing Survey No.108, Hissa Nos.5 and 6, it was
Defendants contention that the Defendants permitted the Plaintiffs to
construct House No.326 in their own land bearing Survey No.94, Hissa
No.5. Ideally, therefore the Trial Court ought to have ascertained
location of the suit house by appointing a Court Commissioner
especially in the light of failure on the part of either of the parties to
prove their respective measurements. Be that as it may, since the
Defendants admitted during the course of evidence that they have no
concern with the suit lands, as well as Suit House no.326, both Trial as
well as the first Appellate Court have recorded a finding of fact that
Plaintiffs are in settled possession of suit lands bearing Survey No.108,
Hissa Nos.5 and 6 as well as of Suit house no.326. Accordingly, both the
Courts have proceeded to grant injunction against the Defendants.

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6)If Defendants/Appellants believe that House No.326 has
been constructed in their land bearing Survey No.94, Hissa No.5, they
can file a suit seeking recovery of possession of portion of the land on
which House No.326 is located. Since Defendants admitted before the
Trial Court that House No.326 was constructed in accordance with the
permission granted by the Defendants and that Defendants did not
have any objection about Plaintiffs occupying House No.326, the Trial
Court has rightly granted injunction against the Defendants.

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____ Page No. 3 of 4____ 27 March 2024

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Neeta Sawant

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7-SA-51-2024.docx

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Mr. Prabhu would express an apprehension that the Order of the Trial Court would be misused by the Plaintiffs to disturb Defendants possession in land bearing Survey No.94, Hissa No.5. I do not see any reason for the Plaintiffs to do so. The decree passed by the Trial Court is specific and emphatic. The injunction is granted only qua landed properties bearing Survey No.108, Hissa Nos.5 and 6 and House No.326. If Defendants believe that Plaintiffs are coming upon any portion of land bearing Survey No.94/5, it would be open for them to file a separate suit claiming injunctive reliefs against the Plaintiffs in that regard. Similarly, the Defendants can also file separate suit for recovery of possession beneath House No.326 from Plaintiffs, if they can prove that the said land is in the ownership of the Defendants. In my view, therefore the rights of the Defendants are appropriately protected by the impugned Decree.

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8)No substantial question of law is involved in the Second
Appeal. Leaving open all the remedies of the Appellants/Defendants as
observed above, open, the Second Appeal is rejected.

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9)All contentions of both the parties in any freshly filed suit,
are kept open.

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Digitally signed by NEETA NEETA SHAILESH SHAILESH SAWANT SAWANT Date: 2024.03.28 11:00:53 +0530

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SANDEEP V. MARNE, J.

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____ Page No. 4 of 4____ 27 March 2024

Motiram Bapu Guram v. Yashwant Shankar Rawale (Deceased) 1) Manik Yashwant Rawale

Case brief

What is this about?

What did the court decide?

Motiram Bapu Guram v. Yashwant Shankar Rawale (Deceased) 1) Manik Yashwant Rawale

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Parties & counsel

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