Ruben Fernasis Pinto vs Pandurang Chitaman Naik — Bombay HC (2025) — LawSathi Research

Ruben Fernasis Pinto vs Pandurang Chitaman Naik — Bombay HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Partial interim stay: first part of Clause 4 of the impugned decree (demolition of construction allegedly in violation of Gram Panchayat Rules) stayed till the next date; second part (removal of encroachment per map Exh. 93) expressly not stayed; appeal placed for further consideration on 08/07/2025, with the Appellant to seek instructions on possible resolution of the remaining dispute.

Issue for consideration

Whether the direction in Clause 4 of the decree to demolish the construction allegedly in violation of Gram Panchayat Rules could not have been granted in the absence of the local Gram Panchayat, alleged to be a necessary party, which was not joined to a suit contested between two private parties. +1 more

Court's answer

Prima facie, the directions to demolish the construction in violation of Gram Panchayat Rules, in the absence of the Gram Panchayat as a party, require further consideration; the point is kept open for the Respondent's submissions on the next date.

Ratio / Principle

Till the next date, the first part of Clause 4 of the impugned Decree — the directions to demolish the construction allegedly in violation of Gram Panchayat Rules — is stayed.

Key takeaways

The second part of Clause 4 of the impugned Judgment — removal of the encroachment from the Respondent's property (Survey No. 137, H. No. 6) as shown in the map (Exh. 93) — is expressly not stayed.ratio¶¶39

Detailed headnote1 paragraphs

High Court of Judicature at Bombay (M. M. Sathaye, J.) — Second Appeal No. 295 of 2025 with Interim Application No. 7976 of 2024; Ruben Feransis Pinto (Appellant; Original Defendant) v. Pandurang Chitaman Naik (Respondent). The Trial Court decreed the Respondent's suit: declaration that the Appellant's house construction violated the Village Panchayat construction Rules/Regulations and the N.A. Order; permanent restraint against obstruction to the Respondent's possession of Survey No. 137, H. No. 6; and, by Clause 4, demolition of the construction made in violation of the Grampanchayat Rules and removal of the encroachment shown in the Court Commissioner's map (Exh. 93) within three months, the map forming part of the decree. The Appellate Court confirmed the decree on 03/02/2022. In the second appeal, the Appellant contended that the demolition direction could not have been granted because the local Gram Panchayat, a necessary party, was not joined, the suit being admittedly between two private parties; the Respondent countered that the Commissioner's map (its 4th-attempt measurement) was unchallenged, the examined Surveyor gave no fatal admissions, and removal of encroachment is purely a question of fact involving no question of law. The Court held prima facie that the demolition direction, absent the Gram Panchayat as a party, requires further consideration; it stayed the first part of Clause 4 (demolition) till the next date while expressly clarifying that the second part (removal of encroachment per Exh. 93) is not stayed. Appeal adjourned to 08/07/2025; Appellant's counsel to take instructions on possible resolution of the remaining dispute.

5.SA.295.2025.doc

Digitally signed by ANANT ANANT KRISHNA KRISHNA NAIK NAIK Date: IN THE HIGH COURT OF JUDICATURE AT BOMBAY 2025.06.25 12:02:09 CIVIL APPELLATE JURISDICTION +0530

SECOND APPEAL NO. 295 OF 2025 WITH

INTERIM APPLICATION NO. 7976 OF 2024

Ruben Feransis Pinto … Appellant

Vs.

Pandurang Chitaman Naik … Respondent

Adv. Hetal Patel a/w. Adv. Suraj Shetye, Adv. Hemanshu Vyas and Adv. Priyasha Pawar for the Appellant.

Mr. Bhushan Walimbe a/w. Adv. Mayank Tripathi for the Respondent

CORAM : M. M. SATHAYE, J.

P.C.:

Heard learned Counsel for the Appellant.

The Appellant is the Original Defendant against whom the decree has

been passed, the operative part of which reads as under:

1. Suit is decreed with costs.

It is hereby declared that the construction of house made by the defendant is in violation of construction Rules and Regulations of Village Panchayat and N.A. Order

Defendant is hereby permanently restrained to cause any kind of obstruction to the possession of the plaintiff in S.No. 137 H. No. 6.

Defendant is directed to demolish the construction made by him in violation of the Grampanchayat Rules and also to remove the encroachment made by him in S. No. No. 137 H. No. 6, as shown in

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the map prepared by the Court Commissioner (Exh. 93) within three months from the date of this order, with his own costs.

1. Map (exh. 93) shall form part and parcel of the decree.

1. Decree be drawn up accordingly.”

The said decree is confirmed by the impugned Judgment and Decree dated 03/02/2022 passed by the Appellate Court.

The learned Counsel for the Appellant submits that Clause 4 of the impugned decree indicates that the Appellant is directed to do two distinct things. First, demolish the construction made allegedly in violation of Gram Panchayat Rules and, second, to remove alleged encroachment made by the Appellant in the property of the Respondent (Survey No. 137, H.No. 6), as shown in the map prepared by the Court Commissioner (Exh. 93). She submits that so far as first part of the Clause 4 is concerned, local Gram Panchayat was not made party and as such the direction to demolish construction in alleged violation of Gram Panchayat Rules, could not have been granted in absence of Gram Panchayat, which was a necessary party.

Admittedly, the Suit is contested between two private parties and local Gram Panchayat was not the party.

So far as the second direction to remove the encroachment in the

Respondent’s property as shown in the map (Exh. 93) is concerned, the

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learned Counsel for the Respondent has submitted that the map, as prepared by the Court Commissioner, which was 4^th attempt measurement, has not been challenged. It is further submitted that the Surveyor who was examined has not given any fatal admissions to disbelieve the map and as such, the encroachment shown in the map must be removed. He submits that it is purely a question of fact and no question of law is involved.

Having heard the learned Counsel for the parties and having perused the judgments of the Trial Court and Appellate Court as well as the evidence of the Surveyor, prima facie the directions to demolish the construction in violation of Gram Panchayat Rules, in absence of Gram Panchayat as a party, requires further consideration, about which the learned Counsel for the Respondent seeks time to make submissions.

Place the Appeal for further consideration on 08/07/2025.

Till the next date, first part of the Clause 4 of the impugned Decree about directions to demolish the construction allegedly in violation of Gram Panchayat Rules, is stayed. It is however, clarified that the second part of the Clause 4 of the impugned Judgment to remove encroachment from the property of the Respondent (Survey No. 137, H. No. 6) as shown in the map (Exh. 93) is not stayed.

Learned Counsel for the Appellant submits that in view the partial stay

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granted by the Court, she will also take necessary instructions if the parties are willing to resolve the remaining part of the dispute.

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