1 wp-8403-11.sxw mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8403 of 2011 Shri Datu Vithoba Yadav (since deceased) through LRS Shri Haridas Dattu Yadav & Ors. .. Petitioners Versus Shri Dnyaneshwar Sambha Yadav & Ors. .. Respondents Mr. K.B.Sonwalkar for the Petitioners Mr. Vishwanath Talkute for the Respondent Nos.2 & 4 to 7 CORAM : R.M.SAVANT, J. DATE : 7th DECEMBER, 2011 ORAL JUDGMENT : 1 Rule. With the consent of the parties made returnable forthwith and heard. 2 The above Petition takes exception to the Order dated 24­8­2011 passed by the Learned District Judge­2, Pandharpur, by which Order, the Civil Misc Appeal No.33 of 2010 Exhibit 24 filed by the Respondents herein came to be allowed and resultantly, the Order passed by the Trial Court granting temporary injunction to the Plaintiffs came to be set aside. 3 The Petitioners herein are the original Plaintiffs who have filed the suit for injunction restraining the Respondents herein from interfering 2 wp-8403-11.sxw with the Plaintiffs possession in respect of the land bearing Gat No.669. The said Gat No.669 as per the consolidation scheme ought to be shown as constituted out of original Survey No.122/1A and 122/1B, but has been wrongly shown in the Consolidation scheme as in respect of survey No.122/2. Whereas Gat No.667 ought to have been constituted out of Gat No.122/2. However, it is the case of the Plaintiffs that in the consolidation scheme Gat No.669 was wrongly shown constituted out of Survey No. 122/2 and Gat No.667 constituted out of Survey No.122/1A and 122/1B. It is the case of the Plaintiffs that they have applied for correction of the consolidation scheme to that effect namely Gat No.667 to be shown as constituted out of Survey No.122/2 and Gat No.669 to be shown as constituted out of Survey No.122/1A and Gat No.122/1/B. 4 In so far as, the said correction sought, the said proceedings are pending before the Deputy Director Land Records, Pune. However, the TILR Mangalvedha has submitted a report to the Deputy Director Pune wherein he has mentioned that the Plaintiffs are in possession of the Gat No.669 on the western side to the extent of 1H and 12 R. 5 The Plaintiffs in the said suit filed by them moved an Application for temporary injunction. It was the case of the Plaintiffs that the land owned by the Respondents namely survey No.122/2 which was on the eastern side was completely acquired for the resettlement of the project affected persons in the year 1972 and the owner of the said land Hari 3 wp-8403-11.sxw Yadav was compensated and the said land after acquisition was allotted to one Ramchandra Chavan in the year 1976. One Hari Yadav who is the son of the original Plaintiff and the brother of Narayan Yadav and Namdev Yadav has purchased the remaining land from the said Ramchandra Chavan. However, the cause for filing the said suit was the apprehension of the Plaintiffs that the Defendants to the said suit i.e. the Respondents herein would interfere with their possession. The said application for temporary injunction was tried by the Trial Court and by the order dated 8­3­2010, granted the injunction and restrained the Defendants from interfering with the possession of the Plaintiffs in respect of Gat No.669 to the extent of 1 H and 12 R. The Trial Court relied upon the report submitted by the TILR as also took into consideration the fact that the land on the Eastern side was acquired by the authorities for the project affected persons. 6 Aggrieved by the said Order dated 8­3­2010, the Defendants i.e. the Respondents herein filed Misc Civil Appeal No.33 of 2010. The said Misc Civil Appeal came to be allowed by the impugned Judgment and Order dated 24­8­2011. The gist of the reasoning of the First Appellate Court was that since the Plaintiffs are claiming on the basis of the Sale Deed dated 5­7­1993 and since the Plaintiffs by the said Sale Deed have purchased 84 R land by merely showing the defect in the consolidation scheme to the extent of 28 R land, the plaintiffs were not entitled to the 4 wp-8403-11.sxw injunction as prayed for. The First Appellate Court therefore, set aside the order dated 8­3­2010 passed by the Trial Court. 7 Heard the Learned Counsel for the parties. 8 The Trial Court, as can be seen from its order dated 8­3­2010 has relied upon the report submitted by the TILR in the consolidation proceedings which have been initiated by the Plaintiffs for correction of the consolidation scheme. In so far as, the conversion of the original survey to Gat No.667 and Gat No.669, the Trial Court has also taken into consideration the fact that the land on the eastern side has been acquired for the project affected persons. However, the Trial Court has not taken into consideration a very important aspect namely the area mentioned in the Sale Deed of the Plaintiffs which is to the extent of 24 R in Gat No. 122. The Sale Deed is of the year 1993. It is required to be noted that it is the averment of the Plaintiffs in the suit filed by them, that though the area mentioned in the Sale Deed is 84 R, the owner actually intended to sell the whole portion of the said land 1 H and 12 R. However, by mistake the 84 R has been mentioned. It is an accepted position that the Plaintiffs have applied for correction of the consolidation scheme, which proceedings are as yet pending. This correction is sought on the basis of the original area of the respective survey numbers. Therefore, as on date, the Sale Deed of the Plaintiffs is only for 84 R and, therefore, the question arises whether the Plaintiffs would be entitled to an injunction in respect 5 wp-8403-11.sxw of the entire land in the said Gat No.669. 9 There is a substance in the submission of the Learned Counsel appearing for the Respondents that the Plaintiffs can not get a relief beyond the area mentioned in the Sale Deed. However, the fact remains that there seems to be same dispute in respect of the consolidation scheme, which is being agitated by the Plaintiffs before the authorities under the said Act. The First Appellate Court, therefore, ought to have modulated the reliefs considering the aforesaid factual aspect. However, the First Appellate court has merely set aside the Order passed by the Trial Court, in view of the fact that the Sale Deed of the Plaintiffs is for 84 R, the order of temporary injunction granted by the Trial Court ought to have been restricted by the First Appellate Court to the extent of the said area. 10 In so far as, the balance of the area is concerned, in my view, since the proceedings are pending before the consolidation authorities, the First Appellate Court ought to have directed the parties to maintain status­quo in respect of the balance area. The impugned orders therefore passed by the First Appellate Court is quashed and set aside as also the Order passed by the Trial Court is quashed and set aside and is substituted by the following: (i) The Plaintiff would be entitled to temporary injunction in respect of Gat No.669 to the extent of 84 R. 6 wp-8403-11.sxw (ii) In so far as, the balance area is concerned, the parties would maintain status­quo till the consolidation proceedings are decided. The parties would be entitled to file application before the Trial Court in respect of the said balance area after the said proceedings are over. (iii) The above directions would operate pending the Suit, subject to clause (ii) above in respect of the balance area of 30 RS. 11 Rule is accordingly made absolute in the aforesaid terms with parties to bear their respective costs. (R.M.SAVANT, J.)