Second Appeal No.473 of 2015 with Civil Application No.1006 of 2015. Case: Parvatibai Tanu Shivgan (Since Decd.through Legal Heirs) Vs Shri Dhondu Sakharam Gurav. High Court of Bombay (India)
| Case Number | Second Appeal No.473 of 2015 with Civil Application No.1006 of 2015 |
| Counsel | For Appellant: Mr. Surel Shah, Adv. and For Respondents: Mr. Vaibhav Ugle, Adv. |
| Judges | R.D. Dhanuka, J. |
| Issue | Code of Civil Procedure, 1908 - Section 100 |
| Judgement Date | September 07, 2016 |
| Court | High Court of Bombay (India) |
Judgment:
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By this appeal filed under section 100 of the Code of Civil Procedure, 1908, the appellants (original plaintiffs) have impugned the order and judgment dated 17th November, 2014 passed by the learned Principal District Judge, Ratnagiri, dismissing Regular Civil Appeal No.39 of 2009 filed by the appellants, by which the appellants have impugned the rejection of part of the relief by the learned trial Judge in the suit for perpetual injunction or in the alternate for possession of the part of the suit property filed by the appellants is concerned.
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For the sake of convenience, the parties described in this judgment are described as they were described in the proceedings before the learned trial Judge.
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By consent of parties, the second appeal was heard finally at the admission stage by formulating substantial question of law on 30th August, 2016. Some of the relevant facts for the purpose of deciding this second appeal are as under:
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The area of 33 acres out of the suit property bearing Gat No.1026 admeasuring 1-H 52-R known as "Bhokar" situated at village Khanu, Taluka and District Ratnagiri is the subject matter of this appeal. The suit property bearing Gat No.1026 was purchased by the husband of the plaintiff no.1 Tanu Babu Shivgan, father of the plaintiff no.2 and the defendant nos.2 to 5, who had purchased the suit property from Govind Dhondabarao Salvi and Ramchandra Dhondabarao Salvi under a registered sale deed dated 25th November, 1971.
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It was the case of the plaintiffs that the predecessor in title of the suit property Tanu Babu Shivgan planted Alphonso mango plants and developed Alphonso mango garden on the said plot which were bearing fruits. Some time in the year 2001- 2002, the defendant no.2 behind the back of the said Tanu Babu Shivgan entered his name in the cultivation column of mutation record without giving any notice to the plaintiffs. Residential Nayab Tehsildar, Ratnagiri allowed the said application field by the defendant no.1. The plaintiffs preferred an appeal before the Sub-Divisional Officer, Ratnagiri, who by his order dated 4th November, 2013 was pleased to set aside the order passed by the Residential Nayab Tehsildar, Ratnagiri and directed to strike off the name of the defendant no.1 entered in the cultivation column of the revenue record to the extent of 33-R. The defendant no.1 preferred R.T.S. Appeal No.9 of 2004 before the Additional Collector. The Additional Collector allowed the said appeal filed by the respondent no.1 and restored the order passed by the Residential Nayab Tehsildar, Ratnagiri by setting aside the order passed by the Sub-Divisional Officer, Ratnagiri. It was the case of the plaintiffs that the said order passed by the Additional Collector was void and illegal, as the same was passed without conducting any proper enquiry as to the actual cultivation contemplated under the provisions of the Maharashtra Land Revenue Code.
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It was the case of the plaintiffs that the plaintiffs apprehend interference with their possession over the suit property by the defendant no.1. The plaintiffs accordingly filed a suit (Regular Civil Suit No.145 of 2005) on 27th April, 2005 inter-alia praying for injunction against the defendant no.1 from disturbing their possession over the entire property and in the alternative in case it was found that the defendant was in possession of the portion of the larger property, the defendant no.1...
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