High Court
Legal Reasoning
1 18 ao 08.24IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADAPPEAL FROM ORDER NO. 08 OF 2024Munwarbi Abdul Gaffar and another.. AppellantsVersusShabbir Hussain Kikabhai Vhora and others.. RespondentsShri G. R. Syed, Advocate for the Appellants.Shri Ruchir Wani, Advocate for the Respondent Nos. 1 to 4.Shri N. D. Raje, A.G.P. for the Respondent No. 5.Shri Narayan Y. Chavan, Advocate h/f Shri D. S. Bagul, Advocate for the Respondent No. 6.CORAM :SHAILESH P. BRAHME, J. DATE :22ND SEPTEMBER, 2025.FINAL ORDER :.Heard both sides.2.Appeal is directed against the order dated 06.02.2024rejecting Civil Misc. Appeal No. 13 of 2023. Appellants areoriginal plaintiffs, who are prosecuting R.C.S. No. 13 of 2023 forperpetual and mandatory injunction. Respondents are theoriginal defendants.3.Appellants are owners and in possession of plot No. 268.Respondents are owners and in possession of plot No. 264. It islocated on the back side of plot No. 268. It is alleged in the plaint
Legal Reasoning
2 18 ao 08.24that the respondents caused encroachment upon space of sevenfeet, which is part and parcel of plot No. 268 and startedconstructing. Application Exhibit 05 filed for temporaryinjunction was rejected by the Trial Court. Against that CivilMisc. Appeal No. 10 of 2023 was taken out. By order dated15.06.2023 order passed below Exhibit 05 was quashed andmatter was relegated to the Trial Court for appointment ofCommissioner and the parties were directed to maintain statusquo. Respondents continued with the construction despite thedirections which gave rise to Misc. Civil Appeal No. 13 of 2023under Order XXXIX Rule 2A, under Order XXXIX Rule 11 andunder Order XXXVIII of the Code of Civil Procedure (for the sakeof brevity and convenience hereinafter referred as to the 'C.P.C.').By impugned order the application was rejected, henceappellants are before this Court.4.Learned counsel for the appellants submits that there isblatant violation of directions issued by order dated 15.06.2023passed in Civil Misc. Appeal No. 10 of 2023. By referring to thephotographs filed on record, it is contended that the respondentscontinued with the construction. It is further submitted thatunless the commission is executed and boundaries are fixed therespondents should not have proceeded with the construction,which has caused grave prejudice to the appellants. It is furthersubmitted that till the report of the Commissioner comes, it wasnot permissible for the respondents to carry out the construction.It is vehemently submitted that the findings recorded in the 3 18 ao 08.24impugned order that construction has been made in plot No. 264belonging to the respondents is ex-facie illegal and that too whenmatter is at interlocutory stage. It is submitted that this is fitcase to take strict action U/O XXXIX Rule 2A of the C. P. C.5.Per contra, learned counsel for the respondents wouldsubmit that the prohibition imposed by order dated 15.06.2023was restricted to plot No. 268 and not the activity of constructionbeing carried out in plot No. 264. It is submitted that theadmissions of the appellants' witnesses are rightly appreciated inthe impugned order. It is further contended that appellantssuppressed order dated 20.07.2022 below Exhibit 88 passed bythe Trial Court.6.I have considered rival submissions of the parties. I havegone through the photographs filed on record with the assistanceof both the learned counsels. Appellants are prosecuting R.C.S.No. 113 of 2022, which is still pending with the Trial Court.7.It would be appropriate to reproduce the order passed bythe lower Appellate Court in Civil Misc. Appeal No. 10 of 2023 on15.06.2023 :O R D E R 01] Misc. Civil Appeal No.10/2023 stands partly allowed asfollows :-i) The impugned order dated 05/06/2023, on application of 4 18 ao 08.24temporary injunction at Exh.5, in RCS No.113/2022, passed by learned Joint Civil Judge, Senior Division, Nandurbar is quashed and set aside and the said application is remanded backto the Trial Court for fresh hearing, after directing and seeking the Court Commissioner’s report, as per actual position on the spot and as per rules and after hearing both the parties, on merit.ii) The plaintiffs/appellants and respondents/defendants aredirected to appear before the Trial Court, on or before 26/06/2023 and the plaintiffs/appellants to apply before the Trial Court and deposit necessary charges of the Court Commissioner, without fail.iii) If the plaintiffs/appellants failed to comply the order of Court Commissioner’s charges, passed by Trial Court, within reasonable period and without sufficient cause, then the Trial Court, may pass appropriate order on their application at Exh.5,as per rules.iv) Meantime, the defendant No.1/respondent No.1 is directed to maintain status quo of construction of today’s position, in suit property and the plaintiffs/appellants are directed to produce on record, the said position, before the TrialCourt, with the help of photographs, affidavits etc.03] A decree, in Misc. Civil Appeal No.10/2023, be drawn upaccordingly. 04] Send copy of Judgment and decree to the Trial Court, as perrules. 8.Considering the plaint and application Exhibit 05, the suitproperty is the plot where it is alleged that respondents arecarrying out the construction illegally. It is unequivocally clearfrom para No. 3 of the plaint that open space of seven feet part ofplot No. 268 is the area which is alleged to have been used by the 5 18 ao 08.24respondents for carrying out construction. It is clear from clauseNo. 4 of order dated 26.03.2023 that suit property means plot No.268.9.From the photographs, it is clear that the constructionactivity has been underway. The construction appears to havebeen progressed from 15.06.2023, till passing of the impugnedorder. The crucial issue which needs consideration is as towhether construction is made in plot No. 268 belonging toappellants or not.10.The matter is at interlocutory stage. There was noprohibition for the respondents to carry out construction in theirplot i. e. plot No. 264. They come up with a case that they havenot flouted any order by carrying out construction in their plot. Itis not possible to come to any definite conclusion at thisinterlocutory stage that in fact the construction is made in plotNo. 268. A full fledged trial is required to come to such aconclusion.11.In pursuance of the order dated 15.06.2023 CourtCommissioner was appointed vide order dated 25.07.2023 belowExhibit 117. His measurement report or map need to be takeninto account for arriving at a conclusion as to whether theconstruction is made in plot No. 268 or 264. I am of theconsidered view that the observations made in the impugnedorder in para No. 17 that the construction was being made in plot 6 18 ao 08.24No. 264 are prima facie in nature and cannot be treated to beconclusive proof. It would be open for the parties to address theissues during trial.12.The submission of the learned counsel for the appellantsthat no further construction should have been made till thereport of the Commissioner comes or till the boundaries are fixedcannot be countenanced. I find that there is no prohibition forcarrying out any construction if it is permissible in law and if itis done in plot No. 264 belonging to the respondents. It was notthe purport of any interim order to prevent activity ofconstruction blanketly.13.Impugned order refers to the admissions given by theappellants’ witnesses. The witness in clear terms admitted thatthe construction is in plot No. 264 and initially in plot No. 264some part was vacant. Those admissions are rightly appreciatedfor the limited extent of deciding the application. The conclusionarrived at on the basis of admissions cannot be faulted.14.Appellants had made application Exhibit 88 U/O XXXIXRule 11 read with Order XXXVIII Rule 2 of the C. P. C. beforethe Trial Court. It was rejected on 20.07.2022. Presentapplication is predominantly U/O XXXIX Rule 2A of the C.P.C.complaining breach of injunction granted by the self sameAppellate Court. Present application and application Exhibit 88operate in different spheres. Therefore, in the strict sense it 7 18 ao 08.24cannot be said that it was not permissible for the appellants toundertake the proceedings U/O XXXIX Rule 2A of the C. P. C.15.For the reasons stated above, I find that there is noillegality or perversity in the impugned order. Appeal from orderis dismissed. Needless to state if the construction is found to bean encroachment, it would be subject to further orders passed bythe Trial Court. [ SHAILESH P. BRAHME J. ] bsb/Sept. 25