1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE APPELLATE APPELLATE JURISDICTION JURISDICTION JURISDICTION WRIT WRIT WRIT PETITION PETITION PETITION NO.9373 OF 2005 NO.9373 OF 2005 NO.9373 OF 2005 Shri Shri Shri Ganesh Ganesh Ganesh Dattatray Pathare ..Petitioners Dattatray Pathare ..Petitioners Dattatray Pathare ..Petitioners & anr anr anr vs vs vs Shri Shri Shri Sharad Sharad Sharad Vasant Ambukar & anr.. Vasant Ambukar & anr.. Vasant Ambukar & anr.. Respondents Respondents Respondents Mr.A.G.Damle Mr.A.G.Damle Mr.A.G.Damle for for for Petitioners Petitioners Petitioners Ms.Teja Ms.Teja Ms.Teja Katdare for Respondents Katdare for Respondents Katdare for Respondents CORAM CORAM CORAM : : : S.A.BOBDE, J S.A.BOBDE, J S.A.BOBDE, J DATED DATED DATED : 3rd August, 2007 : 3rd August, 2007 : 3rd August, 2007 P.C. P.C. P.C. 1.1.1. By this petition, the petitioner has challenged By this petition, the petitioner has challenged By this petition, the petitioner has challenged the the the order passed by the learned District Judge, order passed by the learned District Judge, order passed by the learned District Judge, Alibag. Alibag. Alibag. The learned District Judge has restrained The learned District Judge has restrained The learned District Judge has restrained the the the petitioner and granted injunction from creating petitioner and granted injunction from creating petitioner and granted injunction from creating any any any obstruction to the possession and the obstruction to the possession and the obstruction to the possession and the cultivation cultivation cultivation as well as enjoyment of the property as well as enjoyment of the property as well as enjoyment of the property i.e.Gat i.e.Gat i.e.Gat No.526 admeasuring 72 -Ares against the No.526 admeasuring 72 -Ares against the No.526 admeasuring 72 -Ares against the plaintiffs plaintiffs plaintiffs though it was initially stated that the though it was initially stated that the though it was initially stated that the appellate appellate appellate Court could not have done so. There was Court could not have done so. There was Court could not have done so. There was no no no map or measurement dated 18th December,2004 and map or measurement dated 18th December,2004 and map or measurement dated 18th December,2004 and the the the records and proceedings of the learned trial records and proceedings of the learned trial records and proceedings of the learned trial court court court shows that there is such a map. Apparently, shows that there is such a map. Apparently, shows that there is such a map. Apparently, ititit is the petitioner who failed to appear for the is the petitioner who failed to appear for the is the petitioner who failed to appear for the measurement measurement measurement even though a notice was given to him. even though a notice was given to him. even though a notice was given to him. Relying Relying Relying on such a map, the learned District Judge on such a map, the learned District Judge on such a map, the learned District Judge has has has prima facie found that the petitioner’s prima facie found that the petitioner’s prima facie found that the petitioner’s contention contention contention that there was some mistake while that there was some mistake while that there was some mistake while consolidating consolidating consolidating the holdings is devoid of any the holdings is devoid of any the holdings is devoid of any substance. substance. substance. Moreover, it appears that the learned Moreover, it appears that the learned Moreover, it appears that the learned 2 District District District Judge Judge Judge has decided that the respondents are has decided that the respondents are has decided that the respondents are entitled entitled entitled to an injunction on the basis that apart to an injunction on the basis that apart to an injunction on the basis that apart from from from the the the measurement, the revenue records also show measurement, the revenue records also show measurement, the revenue records also show that that that the the the respondents are in possesssion of the suit respondents are in possesssion of the suit respondents are in possesssion of the suit field field field Gat No.526 which is already fenced and Gat No.526 which is already fenced and Gat No.526 which is already fenced and therefore, therefore, therefore, he is entitled to protect his he is entitled to protect his he is entitled to protect his possession. possession. possession. 2.2.2. Mr.Damle, learned counsel for the petitioner Mr.Damle, learned counsel for the petitioner Mr.Damle, learned counsel for the petitioner submitted submitted submitted that the findings are not correct that the findings are not correct that the findings are not correct because, because, because, there is no clear evidence to show that there is no clear evidence to show that there is no clear evidence to show that the the the petitioner no.1 admittedly purchased over 1 petitioner no.1 admittedly purchased over 1 petitioner no.1 admittedly purchased over 1 hectare hectare hectare of land and lost any of the land of land and lost any of the land of land and lost any of the land and now has has has only been in possession of 15 ares. It is the only been in possession of 15 ares. It is the only been in possession of 15 ares. It is the contention contention contention though not in so many words has been though not in so many words has been though not in so many words has been negatived negatived negatived by the learned District Judge while by the learned District Judge while by the learned District Judge while considering considering considering the area in possession of the the area in possession of the the area in possession of the respondents. respondents. respondents. Petition is thus liable to be Petition is thus liable to be Petition is thus liable to be rejected rejected rejected and and and is hereby rejected. All questions and is hereby rejected. All questions and is hereby rejected. All questions and the the the findings are left open for its determination at findings are left open for its determination at findings are left open for its determination at the the the time of hearing of the suit. time of hearing of the suit. time of hearing of the suit. (S.A.Bobde, (S.A.Bobde, (S.A.Bobde, J) J) J) 3