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IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.8012 OF 2021

Sujata Himmatrao Shankhpal

Petitioner

Versus

Shamkant Bhagwantrao Sonawane

and others

Respondents

Mr.Amol S. Sawant, advocate for the petitioner

CORAM : AVINASH G. GHAROTE, J.

DATE : 28^th July, 2021.

PC :

1

Heard Mr.Sawant, learned Counsel for the petitioner.

2

The petitioner has instituted a suit, for declaration that

she has become the owner of land admeasuring 3200 square feet

from and out of the land of plot no.26, totally admeasuring 8800

square feet, as against respondent no.1, by way of adverse

possession; so also a declaration that the sale deed dated

11.11.2020 executed by respondent no.1/defendant no.1 in favour

of respondents no.2 and 3 is null and void and not binding upon

the petitioner/plaintiff.

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3

Both the Courts below have concurrently held that the

petitioner is not in possession of the property and, therefore, did

not have any prima facie case, in absence of which, the application

for grant of temporary injunction has been rejected by the trial

court, which has been confrmed by the appellate Court.

4

Mr.Sawant, learned Counsel for the petitioner, submits

that the Courts below have rejected the relief only on the ground

that the relationship between the plaintiff and defendant no.1 has

not been disclosed, by ignoring the affdavits of the neighbours

regarding the possession of the plaintiff and that of the contractor

who had constructed the boundary wall over the disputed

property, at the instance of Himmatrao, father of the plaintiff and,

therefore, the impugned orders cannot be sustained.

5

The relationship between the parties is material. The

respondent no.1 is the husband of the petitioner’s real sister

Sushma. Sushma is said to have passed away in February-1999,

since which date, it is alleged that the relations are strained.

However, learned Counsel Mr.Sawant fairly admits that this

statement neither fnd place in the plaint nor in Exhibit-5.

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6

It is an admitted position on record that the

relationship between the parties, as indicated above, has not been

disclosed in the plaint. There does not appear to be any apparent

reason not to disclose the same. In fact, in my considered opinion,

disclosure of the relationship, was material, as it had a bearing

upon the plea raised by the plaintiff, of being in exclusive

possession, hostile to defendant no.1.

7

It is not in dispute that plot no.26, situated at Dhule,

originally measured 8800 square feet, out of which an area of 2800

square feet was purchased by late Himmatrao on 04.01.1997 and

balance area of 3200 square feet was purchased by Respondent

no.1

on

the

same

day

by

a

sale deed dated 04.01.1997. It is also not disputed that the

relationship between late Himmatrao and defendant no.1 was that

of father-in-law and son-in-law. It is also not disputed that

Respondent no.1, due to his employment, was residing outside.

From the affdavit of the contractor, at page 63, dated 14.01.2021,

it appears that the boundary wall was constructed by late

Himmatrao around the entire plot no.26. The affdavit of the

contractor – Nathu Uttam Bhadane, however, does not say

anything else.

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8

Considering the relationship between defendant no.1

and Himmatrao and purchase by them of two portions of plot

no.26, it can be inferred, that Himmatrao was acti