IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

SECOND APPEAL NO.378 OF 2018

WITH

CIVIL APPLICATION NO.6829 OF 2018

IN SA/378/2018

CHATARU NATHA KHANDAGLE

VERSUS

BHAGUBAI BHAURAO BHANDRE AND OTHERS

…..

Advocate for Appellant/Applicant : Mr. N. S. Jaju

Advocate for Respondent : Mr. Y. V. Kakade

…..

CORAM : SMT.VIBHA KANKANWADI, J.

DATE : 09-09-2021

ORDER :

1.

Present appeal has been filed by the original plaintiff challenging

the Judgment and decree passed in Regular Civil Appeal No.66 of

2014, by learned District Judge-13, Ahmednagar, on 11-10-2017,

thereby allowing the appeal filed by the present respondent and

thereby setting aside the Judgment and decree passed in Regular Civil

Suit No.186 of 2011 by learned Civil Judge, Junior Division, Shevgaon,

dated 27-01-2014 whereby suit filed by the present appellant for

perpetual injunction was decreed.

2.

Heard learned Advocate Mr. N. S. Jaju for appellant and learned

Advocate Mr. Y. V. Kakade for respondents No.1 to 4. In order to cut

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short, it is stated that both of them have made submissions in

support of their respective contentions.

3.

At the outset, as aforesaid the plaintiff had filed the said suit

for perpetual injunction. It was contended in the plaint that initially

one Maruti Kisan was the owner of suit property i.e. agricultural land

bearing Gut No.178 admeasuring Western side 2 H 60 R situated at

village Kolgaon Tq. Shevgaon Dist. Ahmednagar. Maruti died in the

year 1982 leaving behind son Rambhau. Rambhau also died 20

years prior to the suit. Defendant No.5 Sitabai is the widow of

Rambhau. Santosh and Ravi are the sons of Rambhau. Bhagubai,

Yashoda and Laxmibai were the sisters of Rambhau. Out of them

Laxmibai has expired. It was stated that Maruti was the relative of

the defendants. In fact, about 40 years prior to the suit, Maruti had

left Kolgaon along with his relatives. He used to work at Nashik as

well as Rahuri. Even his son Rambhau did not return to village

during his lifetime. Plaintiff contended that he is the owner of Gut

No.201 adjacent to the suit property. Since Maruti had left the

village, the plaintiff started cultivating the said land and since last 40

years he is cultivating it without any interruption even by the legal

representatives of Maruti. According to the plaintiff, defendants

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have no concern with the suit property. Plaintiff says that he met

with defendants in Tahsil Office, Shevgaon on 01-06-2011 and came

to know about the intention of the defendants to sell out the

property. According to the plaintiff, he tried to convince defendants

not to sell the property, however, defendants were not in mood to

listen and, therefore, he filed the suit.

4.

Defendants appeared and denied all the contents of the plaint

and even the description of the property was challenged. It was

stated that the suit property was class-II occupancy land. After

death of Maruti, name of his legal representatives came to be

recorded in 7/12 extract and then they were cultivating the said

land. It was their contention that they were getting it cultivated

through somebody. When they are the owners and possessors of

the property, they cannot be injuncted.

5.

As aforesaid, the suit came to be decreed, however, in the

appeal the said decree is reversed. Hence, this second appeal.

6.

Plaintiff has not claimed that he is the owner of the suit

property. It is not his case nor a declaration was sought by him that

he has become owner by adverse possession. It appears from the

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record that the plaintiff has not given the nature of his alleged

possession over the suit property. At the cost of repetition, it can be

said that plaintiff has not come with a case that he got the

possession of the suit property unauthorisedly or illegally, yet since

it co