Bombay High Court
Mohd. Kayyum S/O Mohd. Hayat And Another vs Abdul Rasheed S/O Abdul Waheed on 7 December, 2018
Author: Manish Pitale
Bench: Manish Pitale
1 WP673-17.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
Writ Petition No.673 of 2017
(Mohd. Kayyum s/o Mohd. Hayat and another .vs. Abdul Rasheed s/o Abdul
Waheed )
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Office Notes, Office Memoranda of Coram,
appearances, Court's orders or directions Court's or Judge's orders.
and Registrar's orders
Mrs. M.A. Syed, Advocate for Petitioners.
Mr. S.V. Sohoni, Advocate for Respondent.
CORAM : Manish Pitale, J.
DATED : December 07, 2018.
By this writ petition, the petitioners (original plaintiffs) have challenged the judgment and order dated 17.11.2016 passed by the Court of District Judge, Akola (appellate Court), whereby the appeal filed by the respondent (original defendant) has been allowed and the order of temporary injunction granted in favour of the petitioners has been set aside.
2, The petitioners filed Regular Civil Suit No. 49 of 2015 being a suit for permanent injunction against the respondent and another person seeking injunction to the effect that the defendants in the said suit be restrained from entering into the suit property and crossing to enter their houses. In the said suit, the petitioners filed an application for grant of temporary injunction. The Court of Civil Judge, Junior Division, Balapur (trial Court), allowed the application for temporary injunction holding that if such temporary injunction was not granted, it might lead to complaints and cross-complaints including ::: Uploaded on - 10/12/2018 ::: Downloaded on - 29/12/2018 09:15:16 ::: 2 WP673-17.odt criminal proceedings that might be initiated by the parties, leading to further inconvenience and dispute. On this basis, the trial Court granted the temporary injunction. This order was challenged by the respondent by filing appeal before the appellate Court, which has been allowed by the impugned judgment and order.
3. Mrs. Syed, learned counsel appearing for the petitioners, submitted that the order of temporary injunction granted by the trial Court was justified because a perusal of the location of the entire plot and the structures owned by the original parties would show that the respondent did not need to use the approach way and it was being used only to harass the petitioners. It was submitted that once the trial Court had taken prima facie view and granted temporary injunction in favour of the petitioners, the appellate Court was not justified in interfering with the same.
4. Mr. Sohoni, learned counsel appearing on behalf of the respondent, defended the impugned order passed by the appellate Court, stating that the ground realities and the documents on record were correctly appreciated by the appellate Court in setting aside the order of temporary injunction because the approach way in question was being used for a long period of time, by the original owner, as also the person from whom the respondent had purchased portion within the said plot. It was submitted that when the said approach way and common area was being used for a long period of time and even after the appeal was allowed by the impugned ::: Uploaded on - 10/12/2018 ::: Downloaded on - 29/12/2018 09:15:16 ::: 3 WP673-17.odt judgment and order, there was no ground made out by the petitioners to interfere with the impugned judgment and order.
5. The dispute in the present case concerns a plot of land that was originally owned by four brothers. One of the four brothers sold part of the suit plot with structure to the vendor of the respondent. Said sale took place in the year 2001 and the subsequent sale in favour of the respondent took place in the year 2003. The appellate Court has perused the contents of the sale deed to come to a conclusion that the open space, road and toilet existing on the spot in question was being commonly used by the parties who owned and were in possession of the parts of the said plot. A perusal of the sale deed dated 30.06.2001 executed by one of the four brothers in favour of the respondent's vendor shows that there are recitals to the effect that there exists common space, road and toilet and further that the open space was being used continuously by all the parties having ownership and possession of respective portions in the plot bearing sheet No. 2218. The aforesaid recitals do show that insofar as the common area is concerned, the usage of the same by all the parties who owned and possessed parts of the said plot has been continuing for a long period of time. In this situation, the appellate Court appears to have taken into consideration the documentary material on record to come to prima facie conclusion against the petitioners. There does not appear to be any error in the findings rendered by the appellate Court.
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6. Apart from this, a perusal of the application for temporary injunction filed on behalf of the petitioners would show that the prayer itself is very general and vague and no specific particulars have been mentioned therein. The application simply states that the contents of the plaint were being relied upon and that since the suit itself would take long time to be decided, the petitioners would suffer hardship and irreparable loss if temporary injunction was not granted. But, no further pleading is placed on record and the prayer itself only states that the application for temporary injunction of the petitioners may kindly be granted till the disposal of the main suit. There are no details as to what was the exact nature of temporary injunction sought by the petitioners. Therefore, the appellate Court was correct in observing that on such vague pleadings made in the application for temporary injunction at Exh.5, the trial Court could not have granted relief in favour of the petitioners.
7. In the light of the above, it is found that the writ petition is without any merit and that it deserves to be dismissed. Accordingly, the writ petition is dismissed with the observation that the suit pending before the trial Court may be disposed of expeditiously.
JUDGE halwai ::: Uploaded on - 10/12/2018 ::: Downloaded on - 29/12/2018 09:15:16 :::