1 wp-10145-11.sxw mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.10145 OF 2011 Atul Vishwanath Pawar .. Petitioner Versus Malati Habirrao Patil (deceased) through heirs & Ors. .. Respondents Mr. Amit Borkar for the Petitioner Mr. P.D.Dalvi for the Respondent Nos.1A to 1D CORAM : R. M. SAVANT, J. DATED : 21st December, 2011 P.C. 1 The above Petition takes exception to the Order dated 15­11­2011 passed by the Learned District Judge, Kolhapur, by which Order, the Appeal filed by the Respondent Nos.1A to 1D came to be allowed and the temporary injunction granted vide order passed in Regular Civil Suit No.485 of 2011 by the 3rd Joint Civil Judge Junior Division, Kolhapur below Exhibit 5 came to be set aside. 2 The Petitioner herein claims to be a joint owner of the plot of land in question along with Respondent Nos.1A to 1D, which property has been purchased by the Petitioner/Plaintiff and one Sarjerao Patil on 6­11­1982 by registered Sale Deed. The said Sarjerao Patil sold his 2 wp-10145-11.sxw common share of about 251.8 sq.mt. to one Malati Patil on 4­6­1984 and the present Respondent Nos.1A to 1D are the legal heirs of the said Malati Patil. The Petitioner/Plaintiff has filed Regular Civil Suit No.485 of 2011 for perpetual injunction for restraining the Respondent/Defendant Nos.1A to 1D from carrying out construction in the suit premises. It would be relevant to note that the main substantive prayer in the said suit which is prayer clause (b) which is to the following effect. That the Defendant Nos.1A to 1D or their agents be prevented from constructing upon the suit property illegally and without permission and perpetual injunction be granted and decree be passed to the said effect. In the said suit the Plaintiff filed an application Exhibit 5 and the relief sought was to restrained the Defendant Nos.1 and 2 by temporary injunction not to carry out construction illegally and without permission. The said application for temporary injunction was replied by the Defendant Nos.1A to 1D. It was their contention that the Plaintiff is the owner and possessor of only 251.8 sq.mt. and that the said land is in possession of the Plaintiff. It was further their contention that the Defendants are the owners of the west side area admeasuring 251.8 sq.mts and as per the Sale deed dated 6­11­1982 the Plaintiff has 3 wp-10145-11.sxw purchased half portion of the east side land and the west side half portion of land was purchased by the said Sarjerao Patil which has come to the Defendant Nos.1A to 1D. It was further their case that they are in possession of the suit property since 1984 and that the Plaintiff has not taken any objection to the boundaries mentioned in the sale deed of the Defendants dated 6­12­1984. It was averred by them that the suit property is not common and in joint possession of the Plaintiff and the Defendants. The Plaintiff has also taken a loan from Mahila Sahakari Bank on the basis of east side half portion belonging to him. 3 The said Application Exhibit 5 was heard by the Trial Court and by its Order dated 12/9/2011 came to be allowed. The sum and substance of the reasons of the Trial Court as can be seen from the impugned Order is that the suit property is a joint property of the Plaintiff and the Defendant Nos.1A to 1D, and being co­owners as such, have no right to construct over the suit property. In so far as the contention of the Plaintiff that the Defendants are carrying out construction without taking any permission, the Trial Court observed that it is not necessary to consider as to whether the construction was as per the rules or not and whether the construction was carried out by taking appropriate permission, in view of the fact that the suit property was of the joint ownership and the Defendants therefore, could not 4 wp-10145-11.sxw construct upon the same. The Trial Court, therefore by its order dated 12­9­2011 allowed the application Exhibit 5 for temporary injunction. Aggrieved by the said Order dated 12­9­2011, the Defendant Nos. 1A to 1D filed Misc Civil Appeal No.193 of 2011. The said Misc Civil Appeal came to be allowed by the impugned Order dated 15­11­2011. The First Appellate Court on the basis of the material on record came to a conclusion that the Defendant Nos.1A to 1D and the Plaintiff have dealt with their respective shares in the property independently and, therefore, the said fact goes to show that there was some understanding between the Plaintiff and the said Sarjerao Patil as regard separate shares. The First Appellate Court also took into consideration that the silence of the plaintiff in respect of the Sale Deed executed by the said Sarjerao Patil in favour of Malati Patil from execution of the Sale Deed, till the filing of the suit, spoke volumes about the conduct of the Plaintiff. The First Appellate Court commented upon the inaction on the part of the Plaintiff to challenge the Sale Deed inspite of the public notice issued by the said Malati which has been produced in the Trial Court in the list dated 19­8­2011. The First Appellate Court observed that inspite of the knowledge of the said transaction, the Plaintiff has remained silent about the boundaries mentioned in the Sale Deed. The fact that the Plaintiff himself has borrowed loan from the Kolhapur 5 wp-10145-11.sxw Mahila Sahakari bank for which he has mortgaged his share according to the First Appellate Court went on to show that even the Plaintiff has dealt with the property in his own way. The First Appellate Court took into consideration the revenue record in which the area mentioned against the name of the Plaintiff and the Defendant Nos.1A to 1D is to the extent of 251.8 sq.mt. respectively. The delay on the part of the Plaintiff in approaching the court in respect of the construction put up by the Defendant Nos.1A to 1D. The First Appellate Court in the teeth of the fact that the Plaintiff had filed the suit much after the construction had substantially progressed, observed that the said fact disentitles the Plaintiff to the grant of the discretionary relief of injunction. The First Appellate Court also observed that injunction could not be granted against a co­owner and accordingly allowed the said Appeal and set aside the injunction Order. 4 It was sought to be contended by Mr. Borkar the Learned Counsel appearing for the Petitioner that the First Appellate Court has not taken into consideration the fact that the construction has been carried out without any permission of the competent authority as required by the circular dated 10­11­2010, issued by the Collector of Kolhapur. The Learned Counsel would contend that in terms of the said circular the permission for development in respect of the properties adjoining the 6 wp-10145-11.sxw municipal area has to be obtained from the competent authority mentioned therein. The Learned Counsel would further contend that the fact that the NA permission has been withdrawn, has not been considered by the First Appellate Court. The Learned Counsel relied upon a Division Bench Judgment of this Court reported in 2000(3) MhLJ 684 in the matter of Fatima w/o Caetano Joao Vs. Village Panchayat of Merces & Anr. It is contended that the Plaintiff as a neighbour was entitled to take objection regarding the construction put up without permission, if the same has the effect of affecting his rights. The Learned Counsel also sought to rely upon the Judgment of the Apex Court reported in 2009(2) MhLJ 601 in the matter of Rikhbsao Nathusao Jain Vs. Corporation of the City of Nagpur & Ors., to buttress the said submission. 5 Per contra, it is submitted by Mr. Dalvi the Learned Counsel for the Respondent Nos.1A to 1D, that what is now sought to be urged before this Court as regards the non obtaining of the permissions by the Defendant Nos.1A to 1D does not find place in the pleadings either in the plaint or the application exhibit ­5. The Learned counsel would contend that the plot of land in question is situated in the gaothan and, therefore the said area is excluded from operation of the said circular dated 10­11­2010. The Learned Counsel would contend that the 7 wp-10145-11.sxw Defendant Nos.1A to 1D have obtained permission from the Gram Panchayat which has been granted by the Gram Panchayat in exercise of the powers under Section 52 of the Bombay Village Panchayat Act, 1958 and if the Plaintiff is so aggrieved by the sanction granted, it is for him to invoke the appropriate remedy by filing an Appeal against the said permission. The Learned Counsel would contend that in so far as the NA permission is concerned, the said issue is between the Government and the Defendant Nos.1A to 1D and in the event the authorities find that the construction has been carried out without the NA permission, the penalty etc., can be imposed upon the Defendant Nos.1A to 1D. However, that would not give right to the Plaintiff to seek injunction against the Defendants in the light of the permission granted by the Gram Panchayat. The Learned Counsel lastly contended that the suit was filed after the construction was almost 80% complete. 6 Having heard the Learned Counsel for the parties and having considered the impugned order dated 15­11­2011, in my view, there is no merit in the above Petition. The trial Court as can been seen, has principally laid emphasis on the fact that the Plaintiff being a co­owner of the property, the Defendants cannot be allowed to construct upon the same. The Trial court as can be seen, has not taken into consideration the material that was placed on record in the form of the sale deed in 8 wp-10145-11.sxw favour of the said Malati Patil who is the predecessor of the Defendant Nos.1A to 1D, the amount of tax paid by the Defendant Nos.1A to 1D, the loan obtained by the plaintiff himself on the basis of his separate share, the revenue entries wherein the area shown against the plaintiff and the Defendant Nos.1A to 1D is 251.8 sq.mt each, the fact that the Plaintiff has approached the Court at a belated stage after substantial progress was made in the construction. On the consideration of the said material, the First Appellate Court has recorded a finding that the Plaintiff and the Defendant Nos.1A to 1D were dealing with their share in question independently and, therefore, the Defendant Nos.1A to 1D could not be injuncted from constructing upon their part of the property which was towards the west. 7 In so far as, the aspect of the building permission is concerned, it is the case of the Defendant Nos.1A to 1D that they have obtained permission of the Gram Panchayat under Section 52 of the Bombay Village Panchayat Act and it is on the basis of the said permission that they are proceeding with the construction. In my view, therefore, if the Plaintiff is aggrieved by the said permission granted by the Gram Panchayat, it would be open for the plaintiff to approach the appropriate authorities and invoke the remedy provided under the Village Panchayat Act against the said sanction. 9 wp-10145-11.sxw 8 As regards the withdrawal or cancellation of the NA permission is concerned, the First Appellate court in my view, rightly held that it would be for the revenue authorities to take action if the said NA permission which was granted has been withdrawn and the Defendant Nos.1A to 1D are proceeding with the development of the property. However, the fact remains that the Defendant Nos.1A to 1D have a building permission under the Village Panchayat Act as contended by their Learned Counsel. 9 Now coming to the suit and the application Exhibit 5, there is no specific reference to the circular which is now sought to be relied upon by the Learned counsel for the Petitioner to contend that the permission of the competent authority ought to have been obtained by the Defendant Nos.1A to 1D. If there were to be an averment to that effect, then definitely the Defendant Nos.1A to 1D would have been required to file a reply to the same and probably would then have to contend that no such permission is required in view of the fact that the plot of land in question is in the gaothan, in the absence of any such pleadings, the Defendant Nos.1A to 1D were not required to state that the land was in the gaothan area and, therefore permission was not required. The averments in the plaint and the averments in the application for temporary injunction exhibit 5 are conspicuously silent as regards 10 wp-10145-11.sxw under which provision the Defendant Nos.1A to 1D were required to obtain permission. The said circular as mentioned herein above has not been adverted to in the pleadings. 10 Now coming to the Judgment of the Division bench of this court in Fatima’s case (supra), the Division Bench considered the locus standi of a neighbour to challenge the permission granted which has the effect of invasion of his rights. It is in the context of the said issue that the observations have been made in the said judgment. However, the instant case involves the rights of a co­owner to construct upon a property which can be said to be separate and independent. The First Appellate Court having recorded a finding of fact that the Plaintiff and the Defendant Nos.1A to 1D were dealing with their property independently, in the said fact situation, the Judgment of the Division Bench in my view would have no application as the Defendants would be entitled to develop the property which is of their share. In so far as, the Judgment of the Apex Court in the matter of Rikhbsao (Supra) is concerned, the said Judgment in my view would have no application as the issue before the Apex court was whether a Civil Court can grant a mandatory order directing the Municipal corporation to sanction the plan. Such is not the issue in the instant case. 11 Having perused the impugned Order and having gone through 11 wp-10145-11.sxw the material on record, in my view, the First Appellate Court was right in upsetting the Order passed by the Trial Court granting temporary injunction as the said Order has been passed by the Trial Court taking into consideration the relevant material. The impugned Order dated 15­11­2011 passed by the First Appellate Court, therefore, cannot be said to be suffering from any illegality or infirmity for this Court to interfere in its Writ Jurisdiction under Article 227 of the Constitution of India. 12 The Writ Petition is accordingly dismissed. 13 At this stage, the Learned counsel for the petitioner applies for continuation of the stay granted by the First Appellate Court and which was in operation till 25­11­2011. In view of the fact that the construction has already been put up and had progressed substantially at the time of filing of the suit and is now almost 80% complete, in my view, there is no warrant to continue the stay. The prayer is therefore refused. ( R. M. SAVANT, J. )