Bombay High Court
Yuvraj Mallikarjun Patil vs Rajkumar Shripatrao Birajdar on 30 January, 2026
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPEAL FROM ORDER NO.4 OF 2026
Yuvraj Mallikarjun Patil,
Age : 75 Years, Occu. : Agriculture,
R/o Teachers Colony, Degloor Road,
Udgir, Tq. Udgir, District Latur. ... Appellant.
Versus
Rajkumar Shripatrao Birajdar,
Age : 55 Years, Occu. : Service,
R/o Life Care Hospital, Udgir,
Tq. Udgir, District Latur. ... Respondent.
...
Advocate for Appellant : Mr. Rodge Krishna Pratap.
Advocate for Respondent : Mr. C. D. Biradar.
...
CORAM : SHAILESH P. BRAHME, J.
DATE : 30.01.2026
FINAL ORDER :-
1. Heard both sides finally at the admission stage.
2. Being aggrieved by rejection of application Exh.5 in
Regular Civil Appeal No.52 of 2025, appellant has preferred
this Appeal from Order. He is original plaintiff in Regular Civil
Suit No.166 of 2020 preferred for perpetual and mandatory
injunction against the respondent. It was dismissed by the Trial
Court.
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3. The controversy pertains to the open space in between
plot Nos.2 and 11 approximately measuring 1000 Sq.Ft. which
is common utility open space. Applicant is the owner and in
possession of plot No.2. The respondent is owner and in
possession of plot No.11. The open space is located on
southern side of the appellant's plot which is tried to be
encroached by the respondent from his northern side.
4. Trial Court dismissed the suit vide judgment dated
18.11.2025. During the pendency of the suit, injunction was
granted restraining the respondent from carrying out the
construction over open space which was confirmed upto High
Court in Writ Petition No.10822 of 2022. In Regular Civil
Appeal No.52 of 2025, application Exh.5 was filed by the
appellant which is rejected by the impugned order.
5. Learned counsel for the appellant submits that
temporary injunction was in operation during the course of the
suit and confirmed upto High Court. The existence of the open
space is evident from the pleadings of the parties, sale deeds
and the evidence on record. Learned counsel would harp upon
the admission in paragraph No.13 of the written statement
which is further corroborated by the material on record. It is
further submitted that non filing of rough sketch as
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contemplated by Order 7 Rule 3 of the CPC is not impediment
because of the description of the four boundaries. It is
submitted that there is strong prima facie case and Lower
Appellate Court committed error of jurisdiction in rejecting the
claim.
6. Per contra, learned counsel Mr. Biradar repels the
submissions of the appellant on the ground that Trial Court
dismissed the suit by sound and elaborate reasons. It is
submitted that plaintiff himself is a mischief monger who
encroached upon road while constructing his plot and cannot
seek equity. My attention is adverted to the cross-examination
of the plaintiff to show that his construction is without
permission. It is submitted that in the absence of any material
indicating any encroachment, there is no reason to interfere in
the impugned order.
7. Having considered the rival submissions of the parties,
what reveals is the existence of the open space in between the
plots of the respective parties. The sale deeds, pleadings of the
parties and oral evidence would indicate existence of common
utility open space meant for the benefit of every member of the
society or the plot holders. Respondents have come up with the
theory that by oral understanding, the open space in question
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has been allotted to him. There is no iota of evidence on
record to disclose the allotment of the open space. The further
theory that by some memorandum of understanding executed
on 11.05.2016 some arrangement was made so as to enable
the respondent to utilize the space. The document has not been
placed on record. Neither the Trial Court nor the Lower
Appellate Court has taken into account this aspect of the
matter.
8. In this backdrop, it is relevant to consider paragraph
No.13 of the written statement which is as follows :
"That, this defendant submits that, plaintiff has not come
before this Hon'ble court with clean hands. Moreover, the
area over which the defendant is making construction is
common open space owned by 11 persons and the
defendant is constructing over that area. The question of
application of M.R.T.P Act and Maharastra Municipalities Act
does not arise as admittedly plot of the plaintiff is outside
within limits."
9. It's a candid admission on part of the respondents that
he is constructing common space. The Lower appellate court
totally overlooked this aspect of the matter and therefore,
interference in the impugned order is necessary.
10. I have carefully gone through paragraph Nos.1, 3 and 6
of the plaint which described four boundaries of plot Nos.2 and
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11 and the topography of controversial open space is very
clear. Considering the nature of the suit, the appellant should
have filed rough sketch as is mandated by the local
amendment. But in the peculiar circumstances, I find that
there is no doubt about existence of the open space and its
location. The claim cannot be rejected solely on the ground of
non-compliance of Order 7. This aspect of the matter needs to
be dealt with at the time of hearing of regular appeal.
11. Much importance is given to the admission given by
P.W.2 to find that there was no encroachment made by the
respondent. The admission pressed into service is vulnerable
and needs to be tested at the time of hearing of the appeal.
Respondent has also placed reliance on the admission of the
plaintiff having made construction on his own plot without any
permission and causing encroachment. This material also can
be dealt with during the course of appeal.
12. Learned counsel for the appellant Mr. Rodge has made
candid statement on instructions of his client that his client has
received notice from the Municipal Council in respect of
encroachment and his client is bound to take steps in
accordance with law. The alleged encroachment to the extent
of 1 ft. would be removed.
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13. I find that impugned order is sustainable because vital
aspect of the matter has not been dealt with. The Appellate
Court has committed patent illegality and therefore,
interference is called for. I, therefore, pass following order :
ORDER
(i) Appeal from Order is allowed.
(ii) Impugned order passed below Exh.5 in Regular Civil Appeal No.52 of 2025 is quashed and set aside.
(iii) Application Exh.5 preferred in Regular Civil Appeal No.52 of 2025 is allowed partly to the extent that the respondent, his servants and anybody claiming through him shall be restrained from causing any construction on the common utility open space located in between plot Nos.2 and 11 till final disposal of the appeal.
(SHAILESH P. BRAHME, J.) ...
vmk/-