1 WP 4738-2010.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4738 OF 2010 Priti @ Shama Prakash Nagale ..Petitioner Vs. Raghunath Janardan Raul ..Respondent ......... Ms.Anulata Saundankar i/b.Ms.Gauri Godse, for petitioner. ......... CORAM: R.G.KETKAR, J. DATE : 23 rd SEPTEMBER, 2010. P.C. : This petition is directed against the judgment and order dated 16 th February, 2010 passed by the Principal District Judge, Raigad-Alibag in Civil Misc. Appeal No.44 of 2008 as also the judgment and order dated 17 th March, 2008 passed by the learned Jt. Civil Judge Junior Division below exhibit 5 in Regular Civil Suit No.47 of 2008. By the impugned judgment and orders, the courts below dismissed the application at exhibit 5. 2] The petitioner came out with the case that he is the owner of land bearing Gat Nos.1328, 1330 and 1332 situate at Mauje-Chaul. Initially, these lands were owned by one Indirabai. She sold these lands to one Vijaysen by a registered sale deed 10 th March, 1975. The petitioner had purchased these lands from said Vijaysen on 25 th April, 1995. After execution of sale deed dated 25 th April, 1995, rectification deed was executed on 24 th April, 1996. It is the case of petitioner that Gram Panchayat house No.666 was constructed by one Achyut Railkar on 2 WP 4738-2010.sxw the basis of oral permission given by Indiarabai. He was residing there, however, subsequently the said property was demolished between 29 th February, 2008 and 3 rd March, 2008. In view of this, the license given by Indirabai came to an end. On the basis of these assertions, petitioner instituted suit for perpetual injunction restraining the respondent defendant from carrying out any construction in Gat Nos.1328, 1330 and 1332 and further from carrying out any construction on the land where earlier construction was made by said Railkar. Respondent resisted the suit as also the application for injunction. Respondent contended that he is no way concerned with Gat Nos.1328, 1330 and 1332. In fact, the structure is standing in Gat No.1329. He had purchased the suit property from Railkar under the registered sale deed dated 10 th February, 2005. 3] Learned counsel for the petitioner submitted that house property no.666 is in fact situate in gat no.1330. There is also recital in the sale deed dated 25 th April, 1995 to that effect. She further submitted that even though learned Judge rejected the application for injunction in paragraph 25, he observed that decision on merit of the suit will be binding upon him. In case the defendant carried out construction, he shall be responsible and liable for the construction. He further observed that it would be just and appropriate to the defendant to furnish undertaking to that effect. 4] Against the rejection of application exhibit 5, petitioner preferred appeal which was dismissed. Learned District Judge, after considering the merits of the case, upheld the decision of the learned trial Judge that petitioner has not made out prima facie case for issuing injunction. He further came to the conclusion that once the learned trial Judge held that the plaintiff failed to establish prima 3 WP 4738-2010.sxw facie case, there was no necessity of giving further directions. Learned counsel therefore submitted that even if the courts below rejected the application made by the petitioner, none the less defendant should be directed to give undertaking as per the observations made in paragraph 25 of the trial court’s judgment. 5] After hearing learned counsel for the petitioner, I am satisfied that no prima facie case is made out by the petitioner for issuing injunction. Perusal of sale deed executed by Indirabai on 10 th March, 1975 in favour of Vijaysen describes the land which were sold under that sale deed viz.survey Nos.329/6 and 329/2. These properties were purchased by Vijaysen who, in turn, sold them to the petitioner on 25 th April, 1995. Perusal of the sale deed dated 10 th February, 2005 whereby respondent purchased lands from said Railkar, indicates that he has purchased gat no.1324 and gat No.1329 corresponding to Survey No. 329/8 and Survey No.329/1. The survey number described in the sale deed dated 10 th March, 1975 shows that the offending structure i.e.house no.666 is situate in Gat No.1329 and is not situate in Gat No.1330. In view thereof, no fault can be found with the impugned orders. It cannot be said that the impugned orders are either perverse or that the courts below have committed any error of law on the face of record. No case for interference is made out. Writ Petition is rejected. [R.G. KETKAR, J.]