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BOMBAY HIGH COURT - BENCH AT AURANGABAD
SMT.VIBHA KANKANWADI, J
ATMARAM ASHRUBA SARKATE AND ORS – Appellant
Versus
VITTHAL GULABRAO GAIKWAD – Respondent
SECOND APPEAL NO.318 OF 2021
Certainly. Based on the provided legal document, here are the key points:
The court emphasized that an apprehension of obstruction alone can be sufficient to justify an injunction, even if there is no actual act of obstruction proven at the time of filing the suit (!) .
The court clarified that in a second appeal, it generally should not interfere with concurrent factual findings unless such findings are perverse or based on no evidence. Mere allegations or admissions regarding encroachment or obstruction do not automatically warrant revision of the judgment (!) (!) .
The original suit was for a perpetual injunction concerning land ownership and alleged obstruction by adjacent landholders. The trial court dismissed the suit, but the first appellate court reversed this decision, holding that the plaintiff proved possession and that the defendants were obstructing that possession (!) (!) .
The defendants contended that the plaintiff had encroached on a portion of their land (16 R) and that the measurement evidence was not properly considered. They also argued that the plaintiff's admissions indicated a lack of cause of action, and that the measurement report and admissions could undermine the plaintiff’s claim (!) (!) .
The appellate court considered the admissions and evidence, concluding that the cause of action—namely, the apprehension of obstruction—was justified and sufficient for granting an injunction. The court also noted that the defendant’s failure to examine certain surveyors or produce specific evidence did not invalidate the plaintiff’s possession claim (!) (!) .
The court highlighted that even voluntary statements by the plaintiff that the contention regarding demolition was incorrect did not negate the apprehension of obstruction, which was deemed sufficient cause for filing the suit (!) .
The court reaffirmed that in cases of concurrent factual findings, unless there is perversity or evidence irregularity, the High Court should not interfere in second appeals. The detailed reasoning of the first appellate court was found to be based on proper evaluation of the evidence and facts (!) (!) .
The overall conclusion was that the second appeal was rightly dismissed, as the findings of fact by the lower courts were supported by evidence and were not perverse, and the law permits injunctions based on apprehension of obstruction even without proof of actual acts (!) (!) .
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| Table of Content |
|---|
| 1. factual background and possession rights. (Para 1 , 2 , 3 , 4) |
| 2. court's reasoning on factual assessment and interpretation. (Para 5 , 8 , 9 , 10 , 11 , 12) |
| 3. arguments on encroachment and evidence handling. (Para 6 , 7) |
ORDER :
1. Present appeal has been filed by the original defendants to challenge the Judgment and decree passed in Regular civil Appeal No.111 of 2015 passed by learned District Judge-4, Jalna on 05-03- 2021 whereby the appeal filed by the present respondent/original plaintiff came to be allowed. The First Appellate Court has reversed the decree that was passed by the learned Trial Judge i.e. Civil Judge Junior Division, Mantha Tq. Mantha Dist.Jalna in Regular Civil Suit No.57 of 2012 on 30-07-2015.
2. The present respondent/original plaintiff filed the said suit for perpetual injunction which came to be dismissed. The plaintiff was contending that he is the owner of land admeasuring 84 R Gut No.219 situated at village Talni Tq.Mantha Dist.Jalna which he had purchased from one Suresh Shankarrao Bhaskar on 10-01-1989. Defendants No.1 to 3 are the adjacent land holders. Land of defendants No.1 and 3 is situated towards Eastern side and the land of defendant No.2 is towards Northern side. It was contended that there is a common bandh (boundary) to their lands. According to the plaintiff, there was obstruction to his possession over the suit land by the defendants on 25-07-2012 when they have tried to demolish the common bandh. Hence, he filed the suit.
3. Defendants No.1 to 3 resisted the claim by filing written statement. They denied the averments about act of trying to demolish the common bandh. In fact, they contended that the plaintiff has encroached on 16 R area of Gut No.187 of defendant No.1 and in fact defendant No.1 got that measurement done on 25-07-2012. On that day, there was marking of his boundaries.
4. The learned Trial Judge held that the plaintiff has partly proved that he is in possession of the suit property, however, it was held that the plaintiff has failed to prove that the defendants are obstructing his possession and, therefore, suit was dismissed. He challenged the said Judgment and decree as aforesaid in Regular Civil Appeal No.111 of 2015. The learned First Appellate Court held that the plaintiff has proved his possession over the suit land. He has also proved that the defendants are obstructing his possession over the suit property and, therefore, by reversing the decree passed by the Trial Judge, the appeal was allowed and the suit came to be decreed.
5. Heard learned Advocate Mr. D. P. Palodkar for appellants and learned Advocate Mr. S. W. Munde for respondent.
6. It has been submitted on behalf of the appellants that both the Courts below have not exercised their powers under Order 26 Rule 9 of the Code of civil Procedure to get a admitted map on record, when the defendants had come with a case that there is encroachment by the plaintiff to the extent of 16 R on the land of defendant No.1. He placed his reliance on the decisions of this Court in Raghunath Kashinath Chavan vs. Sakharam Maroti Chavan and Another , reported in 2019(3) Mh.L.J. 183, and Sudhakar s/o Baburao Kulkarni vs. Gorabai w/o Thansing Marag and others , reported in 2019 (6) Mh.L.J. 287, to support his contention that such measurement ought to have been done. Further, he submitted that the admissions given by the plaintiff and his witnesses in his cross- examination have not been considered. If those admissions are considered then it can be seen that the cause of action itself was not proved. The plaintiff had admitted that since defendant No.1 got his land measured on 25-07-2012, he was under apprehension and then it led to the filing of the suit. He also admitted that in the said measurement, the Taluka Inspector of Land Records has reported that plaintiff has made encroachment to the extent of 16 R land of the defendant. He also admitted that after 25-07-2012, the defendants have not demolished the
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