High Court

Legal Reasoning

110920.2024WP.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD.902 WRIT PETITION NO. 10920 OF 20241.Rajendra Trimbak Sirsat Age : 48 years, Occ : Agriculture, 2.Balu @ Balasaheb Trimbak Sirsat Age : 44 years, Occ : Agriculture, 3.Parmeshwar Trimbak Sirsat Age : 36 years, Occ : Agriculture, 4.Rama Mahadeo Sirsat Age : 45 years, Occ : Agriculture, 5.Dadarao Mahadeo Sirsat Age : 38 years, Occ : Agriculture, 6.Chandrabhan Dada Sirsat Age : 73 years, Occ : Agriculture, All R/o Gadhi, Taluka Georai, Dist. Beed. ..PETITIONERS -VERSUS-1.State of Maharashtra Through Collector, Beed. 2.Zilla Parishad, Through Chief Executive Officer, Beed. 3.Education Officer (Shikshan Adhikari), Zilla Parishad Office, Beed. 4.Headmaster, Zilla Parishad Primary School, Gadhi, Taluka Georai, District Beed. 5.Executive Engineer, Samagra Shiksha Zilla Parishad, Beed. 210920.2024WP.odt6.Deputy Engineer, Zilla Parishad, Construction Sub-Division Office, Georai, Dist. Beed. 7.Grampanchayat Gadhi Through its Sarpanch Grampanchayat Office, Gadhi, Taluka Georai, Dist. Beed. 8.Balajai Rambhau JadhavAge : 40 years, Occ : Contractor, R/o Kekatpangir, Taluka Georai, Dist. Beed. ..RESPONDENTS...Advocate for the Petitioners : Adv. Jadhav Aummaheshwari S.Addl. GP for Respondent/State : Dr. Kalpalata Patil Bharaswadkar Advocate for Respondent Nos.2 and 4 : Mr. Suryawanshi Prashant D. Advocate for respondent no.8 : Mr. Sharad S. Shinde h/f Mr. S.A.Nagorsoge …CORAM :ROHIT W. JOSHI, J. DATED : 12th June, 2025ORAL JUDGMENT :1.The petitioners in the present petition are originalplaintiffs. Respondents are original defendants. The parties will bereferred as “plaintiffs” and “defendants” in the body of the judgment.2.Plaintiffs have filed suit, being Regular Civil SuitNo.77/2024, for recovery of possession of the suit property bearing GutNo.666 admeasuring around 0.23 HR situated in village Gadhi,Tq.Georai, Dist. Beed. Defendant no.2 is running a primary school inthe building standing on the suit property. The said building, accordingto the defendants, is in dilapidated condition, and therefore, the 310920.2024WP.odtdefendants intend to construct a new school building in the said suitproperty. In such circumstances, the plaintiffs have filed suit fordeclaration of ownership and recovery of possession, being RegularCivil Suit No.77/2024. In the said suit, the plaintiffs have also soughtrelief of temporary injunction restraining the defendants from makingconstruction over the suit property.3.The defence of the defendants is that the suit property wasowned by predecessors of the plaintiffs and that they had dedicated thesuit property for school and public road. It is stated that this dedicationwas somewhere around the year 1955-56. It is contended that thedefendants have become the owners of the suit property by adversepossession in the light of long standing possession.4.The application for grant of temporary injunction isrejected by the learned Trial Court vide order dated 10.06.2024.Aggrieved by the rejection of the said application, the plaintiffs filed anappeal under Section 104 read with Order XLIII Rule 1(r) of the Codeof Civil Procedure, being Misc. Civil Appeal No.35/2024. The saidappeal is dismissed vide judgment and order dated 04.09.2024 passedby the learned District Judge-1, Beed. The present petition is filedassailing the aforesaid two orders. 410920.2024WP.odt5.The learned counsel for the petitioners contends thatschool is being run since the year 1993-94. According to her, theproperty was given in occupation of defendant no.2 – Zilla Parishad andthe Zilla Parishad is occupying the same as permissive occupant. Shecontends that perusal of the pleadings in the written statement willindicate that even if the entire case as is set up in the written statementis accepted, the essential ingredients of adverse possession are notmade out. She further elaborates that since defence of adversepossession is taken up, it is obvious that the plaintiffs' ownership isadmitted. She, therefore, contends that the learned Courts ought tohave allowed the application for grant of temporary injunction. It is hersubmission that the nature of the suit property should not be allowed tobe altered without the consent of the plaintiffs, who are owners of thesuit property. 6.Per-contra, the learned AGP and learned advocate for thedefendant – Zilla Parishad justify the orders. They contend that thepossession of the suit property is with the Zilla Parishad since the year1955-56. The possession is open possession and the property is beingenjoyed as if the Zilla Parishad is owner of the property. It is thereforecontended that prima facie, the plaintiffs can not be said to be ownersof the said property. Apart from this, it is contended that in the eventthe plaintiffs succeed in the suit, the decree for possession will ensue, 510920.2024WP.odtand therefore, no prejudice will be caused to the plaintiffs, if the orderis maintained. It is further contended that the building in which theschool is run is in a dilapidated condition necessitating the constructionof new building. It is contended that the construction has alreadycommenced and has come upto plinth level.7.Having heard the rival submissions and having perused therecord of the case, particularly the written statement, it appears thatthe case of the defendants is that they were placed in possession of thesuit property by predecessors of the plaintiffs. The said pleadings willindicate that possession is permissive. In what manner, the possessionhas become adverse is not pleaded in the written statement. Likewise,the date from which the possession has become adverse is notmentioned. It should also be mentioned that since plea of adversepossession is taken, it is obvious that ownership of the plaintiffs willhave to be admitted by the defendants. In any case, the defendantshave admitted ownership of predecessors of the plaintiffs over the suitproperty. 8.The learned counsel for the plaintiffs has drawn attentionto the judgment dated 8th January, 2020 of the Hon’ble Supreme Courtin the matter of Vidya Devi Vs. State of Himachal Pradesh and others inCivil Appeal Nos.60/2020 and 61/2020. In the said matter, the land 610920.2024WP.odtowned by the appellant was taken by the State for construction of aroad. However, compensation was not paid to her. The construction ofthe road was completed in the year 1975. Thereafter, a petition seekingcompensation was filed by the owner in the year 2004. In thisbackdrop, the respondent-State had taken up plea of adverse possessionagainst the land owner. Rejecting the contentions, the Hon’ble SupremeCourt has held as under :-“10.6. We are surprised by the plea taken by the Statebefore the High Court, that since it has been incontinuous possession of the land for over 42 years, itwould tantamount to “adverse” possession. The Statebeing a welfare State, cannot be permitted to take theplea of adverse possession, which allows a trespasseri.e. a person guilty of a tort, or even a crime, to gainlegal title over such property for over 12 years. TheState cannot be permitted to perfect its title over theland by invoking the doctrine of adverse possession tograb the property of its own citizens, as has been donein the present case.” .It thus appears that the plea which is sought to be raisedby the defendants is not legally permissible to be raised by them. 9.Having regard to the aforesaid, it has to be said that a verystrong prima facie case is made out by the plaintiffs. 710920.2024WP.odt10.The learned counsel for the plaintiffs submits that it issettled legal position that while the suit in respect to immovableproperty is pending, the status-quo with respect to suit property shouldgenerally be preserved. She states that there is another Z.P. schoolwithin a distance of 1 kms where the students can be accommodated. 11.In the facts of the present case, it needs to be mentionedthat the plaintiffs have made out excellent prima facie case and likely tosucceed in the suit. In the event, the suit is decreed, public money to beexpended on construction activity will go waste. It will not be in theinterest of defendants also to incur expenditure over the property onwhich prima facie they do not have any right. Since the construction issought to be made over property which is prima facie owned by theplaintiffs against their wish point of balance of convenience is requiredto be answered in their favour. Likewise, since the dispute pertains toimmovable property and the plaintiffs are prima facie owners of thesuit property, it will be expedient that status-quo with respect to theconstruction activity be maintained. In that view of the matter, theimpugned orders, are required to be quashed. 12.Hence, the following order:-ORDER(i)Writ Petition is allowed.(ii)The order dated 10.06.2024 passed by the learned 2nd Joint Civil 810920.2024WP.odtJudge, Senior Division, Beed in Regular Civil Suit No.77/2024 onapplication at Exhibit-5 and judgment and order dated 04.09.2024passed by the learned District Judge-1, Beed in Misc. Civil AppealNo.35/2024 are quashed and set aside.(iii)Application at Exhibit-5 filed by the plaintiffs in Regular Civil SuitNo.77/2024 pending on the file of the learned 2nd Joint Civil Judge,Senior Division, Beed is allowed.(iv)Parties to bear their own costs. [ROHIT W. JOSHI] JUDGEsga/