IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 144 OF 1987. Mahendra Chotalal Dave ...... ...... ...... Appellant V/s Ramchandra Ganpat Kudale...... ...... ...... Respondent. Mr.K.Y.Mandlik, Adv. For the appellant. Mr.R.N.Sanghavi, Adv. For the respondent. CORAM: R.V. MORE, J. 17th NOVEMBER, 2008. ORAL JUDGMENT: Heard Mr.K.Y.Mandlik, learned advocate for the appellant and Mr.Sanghvi, learned advocate for the respondent. The controversy involved in this First Appeal is very narrow. Respondent filed a Special Civil Suit No.350/86 in the Court of learned Civil Judge, Senior Division, Pune for declaration that the suit property described in para 1 of the plaint belongs to him and the appellant has no interest in the said property. Consequential relief of injunction was also claimed restraining appellant from interfering with respondent' s possession of suit property. In para 1 suit property is described as revenue Survey No.15/2-A/1 admeasuring about 77 Aars plus 3 Aars pot-kharaba. Respondent's suit is decreed and the 1 relief of declaration and permanent injunction in respect of suit property was granted. 2. Appellant-Defendant filed aforesaid first appeal challenging the impugned judgment and decree. Case of the appellant is that they have purchased an area of 1 acre and 20 gunthas out of S.No.15 from the respondent by sale deed dated 5.8.63. It is further case of the appellant that in view of registered sale deed original S.No.15 was sub-divided and the area sold to the appellant admeasuring 1 acre and 20 gunthas was numbered as S.No.15/1. It is also case of the appellant that under the guise of impugned judgment and decree the respondent is trying to interfere with appellant' s possession in S.No.15/1. It specific case of the appellant that they have nothing to do with S.No.15/2-A/1 and they admit that said survey number belongs to respondent. 3. First appeal was admitted on 20.4.87. The appellant also filed civil application No.1105/87 for stay of the impugned judgment and decree. After hearing learned advocates for respective parties on 29.4.1987 this Court passed the following order : “Heard Shri K.Y.Mandlik, learned advocate for the appellant and Shri A.P.Shah, learned counsel for the respondent on C.A.No.1105 of 1987. The learned advocate brought forward the salient features of the main controversy caused due to the impugned judgment. It is evident that the land survey No.15/2-A of Hadapsar is in 2 ownership and possession of the plaintiff; whereas the land survey No.15/1 is undisputedly in ownership and possession of the defendant. In so far as the possession and ownership of these two survey numbers are concerned, there is no dispute. Curiously the dispute is on account of the decree of perpetual injunction granted in favour of the plaintiff-respondent and against the present appellant. My attention was drawn to the judgment as well as the pleadings of the defendant disputing the correctness of the boundaries shown in the plan. According to the defendant since the learned Trial Court did not co-relate the respective pleadings regarding boundaries correctly, the defendant is in the eminent danger of being dispossessed by implementation of the decree of perpetual injunction. Shri A.P.Shah, lerned counsel for the respondent concedes that the present decree is confined to his survey No.15/2-A and not to any portion of survey No.15/1. It was suggested by the Advocates appearing for both sides that if a Surveyor, to measure entire land comprised old survey No.15 is appointed and after hearing both sides and also making such enquiries as may be deemed fit, if he prepares the measurement plan of entire survey number qua its sub-umbers and the boundaries, this dispute can be resolved once for all. In view of above, I pass the following orders: The decree with regard to permanent injunction granted 3 by the learned Trial Court is stayed in its operation to Survey No.15/1. The parties are directed to deposit initially Rs.250/- each in the Trial Court and shall also pay the requisite expenses for survey in proportion of 50-50. The Trial Court is directed to appoint a Government Surveyor to comply with the aforesaid directions and to prepare a measurement plan of entire survey No.15 vis-a-vis all its existing sub-numbers and submit it along with the Surveyor's report within a period of three months from the date of his appointment. The stay writ be sent to the Trial Court immediately.” 4. Pursuant to the aforesaid order passed in civil application one Mr.Prabhakar Dattatraya Musale, DILR, Pune has filed affidavit dated 24.7.06. Along with said affidavit a measurement map is also filed. In this measurement map the property belonging to the appellant viz. S.No.15/1 is described by words A, B, C and D. There is no objection on behalf of respondent for this measurement map. 5. In view of peculiar facts and circumstances of the case and especially undisputed fact that S.No.15/1 belongs to the appellant and by impugned judgment and decree injunction is granted only in respect of S.No.15/2-A/1. The present first appeal can be disposed of by modifying the impugned judgment and decree as follows: i) Plaintiff's claim for declaration and permanent injunction is 4 decreed with proportionate costs of the suit against the defendant. ii) It is hereby declared that the plaintiff is the owner of the suit land described in para 1 of the plaint and same is in his possession and cultivation. Defendant has no right, title or interest in the suit land described in para 1 of the plaint. iii) Defendant is permanently restrained from entering into and/or disturbing possession of the plaintiff of the suit land mentioneod in para 1 of the plaint by himself, his family members, agents and/or servants. iv) It is made clear that the plaintiff-respondent shall not disturb the appellant-defendant' s possession in S.No.15/1 admeasuring about 1 acre and 20 gunthas situated at Hadapsar which is more particularly shown in the measurement map of DILR drawn on 5/6-6-2004. The measurment map is taken on record and made part of decree. v) In the peculiar facts and circumstances of the case there shall be no order as to costs. vi) In view of disposal of first appeal, civil application does not survive. 17.11.08 (R.V. MORE, J.) 5