Disposed¶¶21

Viren Shrikumar Papalkar and Another v. Durgabai Babulal Shende and Others

Civil Procedure – Rejection of plaint – Order VII Rule 11 CPC

Bombay HC19 Aug 2025WP/3457/2023

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Case brief

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What is this about?

Bombay High Court, Nagpur Bench; WRIT PETITION NO.3457 OF 2023; Pravin S. Patil, J.; decided 19/08/2025; Order VII Rule 11 Code of Civil Procedure; rejection of plaint; declaration of ownership; adverse possession; encroachment of service road and footpath; Mouza Itawa, Tq. Pusad, District Yavatmal; Trial Court order dated 11.10.2022; observations in impugned order not to affect suit on merits; disposed of, no costs.

What did the court decide?

Writ Petition disposed of with the clarification that the observations in the Trial Court's order dated 11.10.2022 will not affect the decision of the suit on its own merits; no order as to costs. ¶¶21

Viren Shrikumar Papalkar and Another Vs Durgabai Babulal Shende and Others — Bombay HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Writ Petition disposed of with the clarification that the observations in the Trial Court's order dated 11.10.2022 will not affect the decision of the suit on its own merits; no order as to costs.

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Issue for consideration

Whether the Plaint in a suit for declaration of ownership founded on long possession should be rejected under Order VII Rule 11 CPC on the ground that the claimants are encroachers in illegal possession, making the suit not tenable.

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Court's answer

This Court expressed full satisfaction with the findings recorded by the learned Trial Court while rejecting the petitioners' application under Order VII Rule 11 CPC, i.e., declined to interfere with the rejection of the Plaint.

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Ratio / Principle

It was made clear that any observations made by the learned Trial Court in the impugned order dated 11.10.2022 will not have effect while deciding the suit on its own merits.

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Key takeaways

This Court endorsed as correct the Trial Court's legal position that a person claiming declaration of ownership on the basis of adverse possession must first admit that he is an encroacher; the underlying finding originates from the Trial Court and is recorded here only as expressly approved by this Court.ratio¶¶18

Detailed headnote1 paragraphs

Civil Procedure — Rejection of plaint — Order VII Rule 11 CPC — Suit for declaration of ownership over 2500 sq.ft. out of 2.76 HR claimed to be in plaintiffs' possession since 1987 — Defendants' application for rejection of Plaint on the ground that plaintiffs are encroachers in illegal possession and suit not tenable — Trial Court rejected the application by order dated 11.10.2022 — Writ Petition disposed of — High Court fully satisfied with the Trial Court's findings, including its position that a claimant seeking declaration of ownership on the basis of adverse possession must first admit that he is an encroacher — Clarified that any observations in the impugned order dated 11.10.2022 will not have effect while deciding the suit on its own merits — No order as to costs.

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1 5.wp.3457.2023

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR

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WRIT PETITION NO.3457 OF 2023

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Dr. Viren Shrikumar Papalkar and anr. ..vs..

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Durgabai Babulal Shende and ors.

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Office Notes, Office Memoranda of Coram, appearances, Court's orders of directions and Registrar's orders

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Court's or Judge's orders

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Shri S.N. Bhattad, Advocate for the petitioners. Ms. Sapkal, Assistant Government Pleader for respondent nos. 5 and 6.

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CORAM: PRAVIN S. PATIL, J. DATED : 19/08/2025.

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Heard.

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In the present petition, it is undisputed fact that the present petitioners/original defendant nos.3 and 3A are the owner of plot no.5 in the layout bearing survey no.5/1 situated at Mouza Itawa, Tq. Pusad, District Yavatmal. Present respondent no.2/original plaintiff has encroached the service road of the eastern side and footpath on the northern side by making construction over the suit property. The present respondent nos.1 and 2 on 14.09.2021 filed the suit for declaration that out of land area admeasuring 2.76 HR, the land 2500 sq.ft. is in his possession since 1987 and therefore, he should be declared as an owner of the said land.

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The present petitioners filed an application under Order VII Rule 11 of the Code of Civil Procedure for rejection of the Plaint by raising the ground that the possession of the respondent nos.1 and 2 being illegal and in the capacity of encroachers, the suit is not tenable and same should be dismissed.

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The Trial Court after considering the avernment in the Plaint, by order dated 11.10.2022 rejected the

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2 5.wp.3457.2023

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application filed by the petitioners.

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I have gone through the observations and findings recorded by the learned Trial Court while dealing with the aforestated application. The Trial Court has considered the legal position and rightly held that if the person is claiming declaration of ownership on the basis of adverse possession, then he has to first admit that he is an encroacher and with the consent of the owner, he is residing over the said plot for more than 12 years.

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However, learned Counsel appearing for the petitioner stated that the observations made in the impugned order will affect the suit while deciding the same on its own merits.

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In the circumstances, though I am fully satisfied with the findings recorded by the learned Trial Court while rejecting the application, however made it clear that any observations made by the learned Trial Court in the impugned order dated 11.10.2022, will not have effect while deciding the suit on its own merits.

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Hence, with these observations, the Writ Petition stands disposed of accordingly. No order as to costs.

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(PRAVIN S. PATIL, J.)

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Trupti

Viren Shrikumar Papalkar and Another v. Durgabai Babulal Shende and Others

Case brief

What is this about?

What did the court decide?

Viren Shrikumar Papalkar and Another v. Durgabai Babulal Shende and Others

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

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