As per case facts, a civil suit was filed seeking partition, declaration, and injunction over ancestral properties, including Survey No 69A/P. Plaintiffs alleged illegal subdivision and encroachment by a defendant, ...
No Acts & Articles mentioned in this case
AO-140-2022 .doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 140 OF 2022
WITH
INTERIM APPLICATION NO. 850 OF 2022
WITH
INTERIM APPLICATION NO. 3058 OF 2022
IN
APPEAL FROM ORDER NO. 140 OF 2022
1) M/s. Skyline Developers
(registered partnership �rm)
Having o�ce at Matrukrupa Apartment,
Ground �oor, Joshi Baug, Kalyan (W),
District Thane, through its partner
Shri Narendra Janardan Pathak
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...Applicant/
Appellant
Versus
1) Suresh Yashwant Phadke
Age: 52 years, Occ.: Doctor
Residing at Phadke Bunglow,
Doodh Naka, Kalyan (W) - 421 301.
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2) Dilip Yashwant Phadke
Age: Adult, Occ.: Retired
Residing at Phadke Bunglow,
Doodh Naka, Kalyan (W) - 421 301.
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3) Vishwanath Anant Phadke
Since deceased, through heirs and legal
representatives:
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3/1) Smt. Gauri Upendra Gharpure
Age: 63 years, Occ.: Housewife
Residing at Yashodhan Bungalow,
Parnaka, Kalyan (W), Dist. Thane.
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3/2) Sau Rajashri Ravindra Godbole
Age: 54 years, Occ.: Housewife
Residing at Nav Ramai Cooperative
Housing Society, Parnaka, Kalyan (W),
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Dist. Thane-421 301. ]
3/3) Jayashri Nitin S.
Age: 52 years, Occ.: Housewife
Residing at 1564, Parvani Building,
Sadashiv Peth, Pune - 411 030.
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3/4) Netra Anil Shotri
Age: 52 years, Occ.: Housewife
Flat 1564, Sadashiv Peth, Pune - 411 030.
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4) Sudha Anant Gavali
Age: Adult, Occ.: Business
Residing at Chakki Naka, Tisgaon, Kalyan
(E).
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5) Navin Anant Gavali
Age: Adult, Occ.: Business
Residing at Chakki Naka, Tisgaon, Kalyan
(E).
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6) Yogesh Kamal Singh
(Since deceased, through his legal heirs)
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6/1) Dharmavati Yogesh Singh (wife)
Age: 30 years, Occ.: Housewife
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6/2) Aniket Yogesh Singh (son)
Age: 10 years
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6/3) Arpita Yogesh Singh
Age: 8 years
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6/4) Priya Yogesh Singh
Age: 6 years
Respondents Nos.6/2 to 6/4
Since minors, through their natural
guardian Dharmavati Yogesh Singh
All residing at Plot No.69A, Chawl near
mujawar compound, Chakki Naka,
Tisgaon,
Taluka Kalyan.
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7) Shaligram Baijanath Tiwari
Since deceased, through heirs and legal
representatives:
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7/1) Kailashnath Sallikram Tiwari
Since deceased, through heirs and legal
representatives :
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7/1/1) Gnyandevi Kailashnath Tiwari
Age: Adult, Occ.: Housewife
Residing at Matru-Chhaya Bungalow,
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Poona Link Road, Katemanivali,
Near S.B.Divya High School,
Kalyan (E)-421 306.
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7/1/2) Sarita Rakesh Tiwari
Age: Adult, Occ.: Housewife
Residing at Shri Ganesh Housing Society,
Block No.5, Near Ambemata Hall,
Brahman Ali, Neral-410 101, District
Raigad.
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7/1/3) Ashish Kailashnath Tiwari
Age: Adult, Occ.: Business
Residing at Matru-Chhaya Bunglow,
Poona Link Road, Katemanivali,
Near S.B.Divya High School, Kalyan (E)-
421 306.
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7/1/4) Poonam Ashok Shukla
Age: Adult, Occ.: Housewife
Residing at Ganesh Baug, R/H B-2,
Sector-1, Airoli, Navi Mumbai - 400 708.
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7/1/5) Neelam Manas Tiwari
Age: Adult, Occ.: Housewife
Residing at B-11, 401, Gagangiri Enclave,
Barve Village Road, Khadakpada, Kalyan
(W)-421 301.
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7/2) Vijaynath Shalikram Tiwari
Age: 61 years, Occ.: Business
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7/3) Amarnath Shalikram Tiwari
Age: 59 years, Occ.: Business
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7/4) Prabhunath Shalikram Tiwari
Age: 56 years, Occ.: Advocate
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7/5) Vimalnath Shalikram Tiwari
Age: 49 years, Occ.: Advocate
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7/6) Dinesh Shalikram Tiwari
Age: 48 years, Occ.: Business
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7/7) Rajesh Shalikram Tiwari
Age: 47 years, Occ.: Business
Respondents Nos. 7/1 to 7/7 residing at
Matru Chhaya Bungalow, Opp. Dr. Kasle
Hospital, Poona Link Road,
Katemanivli, Kalyan (E) - 421 306.
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7/8) Babulnath Shalikram Tiwari
Age: 57 years, Occ.: Business
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Residing at 309, Baghambari Housing
Scheme (B.H.S.), Bharatdwaj Puram,
Allapur, Allahabad 211 006 Uttar Pradesh
State.
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8) T.K. Gopal Krishnan
Age: Adult, Occ.: Business
Residing at Dinesh Bhavan, Chakki Naka,
Tisgaon, Taluka Kalyan.
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9) Chinan Potyan Dharman
Age: Adult, Occ.: Not known
Residing at Plot No.69/A, Chakki Naka,
Tisgaon, Taluka Kalyan.
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10) Kacheshwar Baban Choudhary (Since
deceased, through his legal heirs)
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10/1) Sakhubai Kacheshwar Choudhary
Age: 78 years, Occ.: Housewife
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10/2) Vandana Rajendra Choudhary
Age: 48 years, Occ.: Housewife
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10/3) Avinash Rajendra Choudhary
Age: 28 years, Occ.: Business
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10/4) Anil Rajendra Choudhary
Age: 24 years, Occ.: Business
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10/5) Bhavesh Rajendra Choudhary
Age: 21 years, Occ.:Student
Respondents Nos.10/1 to 10/5
Residing at Plot No.69A, Chakki Naka,
Tisgaon, Taluka Kalyan.
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11) Krushna Koteshwar Choudhary
Age: Adult, Occ.: Not known
Residing at Plot No.69A, Chakki Naka,
Tisgaon, Taluka Kalyan.
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12) Indappa Timmanna China
Age: Adult, Occ.: Not known
Residing at Plot No.69A, Chakki Naka,
Tisgaon, Taluka Kalyan.
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13) Idanmal Bakhalmal Lund
Age: Adult, Occ.: Not known
Residing at Plot No.69A, Chakki Naka,
Tisgaon, Taluka Kalyan.
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14) Parbindarsingh Dharamsingh Alang
Age: Adult, Occ.: Not known
Residing at Plot No.69A, Chakki Naka,
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Tisgaon, Taluka Kalyan. ]
15) The Commissioner
Kalyan Dombivali Municipal
Corporation, Shankar Rao Chowk, Kalyan
(W).
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16) The Assistant Commissioner
The Town Planning Department
Kalyan Dombivali Municipal Corporation,
Shankar Rao Chowk, Kalyan (W).
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17) M/s. Matrukrupa Enterprises
(registered partnership �rm)
Having o�ce at Matrukrupa Apartment,
Ground �oor, Joshi Baug, Kalyan (W),
District Thane.
Through its partner
Shri Vijaynarayan Ramcharan Pandit
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...Respondents
——————
Mr. Rajesh Datar a/w Mr. Dushyant Pagare, for the Appellant.
Mr. Vishal Kanade a/w Mr. Digvijay Sarangdhar, Ms. Sunitha Nayak i/b Ms. Asmita
Sarngdhar, for the Respondent Nos. 1 & 2.
Mr. D. S. Mhaispurkar, for Respondent No. 3.
Mr. Sandeep Shinde, for the Respondent Nos. 15 & 16.
——————
CORAM : SHARMILA U. DESHMUKH
RESERVED ON : JULY 21, 2026
PRONOUNCED ON : AUGUST 27, 2026
JUDGMENT :
1. Heard. Admit. With consent, taken up for �nal disposal.
2. The present Appeal is at the instance of the original Defendant No.
16 being aggrieved by the order dated 12
th
November, 2021 passed
below Exhibit 226 in Special Civil Suit No. 309 of 2011 dismissing the
application under Order XXXIX Rule 4 of Code of Civil Procedure, 1908
(for short “CPC”) seeking modi�cation of the order dated 6
th
February,
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2012 passed below Exhibit 5.
1.Special Civil Suit No 309 of 2011 was �led seeking interalia
declaration of 2/3rd share in the suit properties, partition, separate
possession and injunction. The plaint assailed the sanctioning of plans
dated 4
th
May, 2011 and 15
th
January, 2011 by the Defendant
Corporation. The Plainti�’s case is of undivided share of the Plainti�s
and the Defendant No 1 in the ancestral suit properties including Survey
No 69A/P situated at Tisgaon. It is pleaded that certain properties were
alienated with the consent and knowledge of Plainti�s, which included
land admeasuring 14,230.60 square meters out of Survey No 69A/P in
favour of various persons including Defendant No 5, through whom , the
Defendant No 16 claims development rights.
2.In so far as Survey No 69 A/P is concerned, the plaint describes
the area of Survey No 69A/P after deducting the alienated area of
14,230.60 square meters. There was unilateral TILR survey carried out at
instance of Defendant No 4 in the year 2007 and by misrepresentation
and fraud Survey No 69 A(p) came to be bifurcated into Survey No
69A/1 and 69 A/2. The pleading is that the land admeasuring 6615
square yards was sub-divided in favour of Defendant No 5 and plans
were sanctioned by the Corporation illegally.
3.Vide interim order below Exhibit 5 passed on 6
th
February, 2012,
the Trial Court noted that Defendant No 5 had appeared in the suit and
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�led his say. The Trial Court considered the Plainti�s have admitted
sale of area admeasuring 6615 square meters in favour of Defendant No
5 but that the dispute is about location. It opined that unless and until
there is demarcation of Survey No 69 A(P) it is necessary to restrict
activities of Defendant No 5. It held that the Corporation has not
considered the objections of the Plainti�s and have sanctioned
development plans in respect of Survey No 69 A(P). The Trial Court
restrained the Defendant Nos 1 to 12 from creating any third party
rights and restrained Defendant Nos 13 and 14 from sanctioning any
development plan in respect of suit properties without g iving
opportunity of hearing to the Plainti�s and without written
consent/permission of Plainti�s.
4.Initially Defendant No 16 was not impleaded as Defendants to the
suit and �led an application under Order 1 Rule 10 of CPC for
impleadment, which came to be rejected on 2
nd
April, 2013 as against
which the Defendant No 16 approached the High Court. Vide order
dated 30
th
January, 2014, the Petition was allowed and Defendant No 16
was joined as party Defendant.
5.The Defendant No 16 challenged the order dated 6
th
February,
2012 below Exhibit 5 by Appeal from Order No 225 of 2014 before this
Court, which came to be disposed of on 30
th
January, 2017 without
interfering with the order but with a direction to decide the suit within
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period of two years.
6.On 23
rd
June, 2016, the Defendant No 16 �led an application for
appointment of Court Commissioner under Order 26 Rule 9 of CPC. It
was pleaded that the development rights were acquired in respect of
6615 square yards out of Survey No 69A(P) from Defendant No 5, who
had purchased the land under conveyance deed of 1973 and possession
was handed over to Defendant No 5. It was pleaded that there is
allegation of the plot of Defendant No 5 not being identi�ed and of
encroachment. It was pleaded that to ascertain the encroachment, the
property bearing Survey No 69/A(P) be measured and for that purpose
Court Commissioner be appointed. The submission canvassed by the
Defendant No 16 was as regards the alleged encroachment and that
property in possession of Defendant No 16 not being subject matter of
the suit. The Trial Court allowed the application and directed the Court
Commissioner to conduct survey, measurement, demarcation of survey
of land admeasuring 6615 square yards of Survey No 69/A(P) and submit
report.
7.After the survey was carried out and map prepared by the Deputy
Superintendent of Land Records, the Defendant No 16 �led an
application under Order 39 Rule 4 of CPC seeking modi�cation/variation
of the order dated 6
th
February, 2012 and for permission to carry out
construction in respect of area admeasuring 6615 square yards as
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shown in Court Commissioner’s report within the boundaries shown in
blue colour excluding portion of area admeasuring 366 square meters as
shown in plan in yellow colour by obtaining requisite/fresh revised
building permission. It was pleaded that as per the map, area
admeasuring 366 square meters was not part of Survey No 69/A(P). As
the Plainti�s have excluded area of 14,230 square meters from the suit
properties, the Defendant No 16 is not concerned with the suit. It was
pleaded that in view of the subsequent development of measurement
by the Court Commissioner, the earlier injunctive order is required to be
modi�ed.
8.The Plainti�s opposed the application stating that the suit has
been �led for partition and other reliefs claiming 2/3
rd
share in the suit
property described in plaint paragraph 3. The order of 6
th
February,
2012 below Exhibit 5 was passed after hearing all the parties, and
though, Appeal was preferred against the order by Defendant Nos. 2
and 3, the High Court has not interfered in the said order. The
Defendant No. 5 from whom Defendant No. 16 claims right has not
challenged the said order by �ling an Appeal, and thus, the said order
has attained �nality.
9.It was pleaded that the Plainti�s in paragraph no. 11(A)(viii) of the
plaint have made speci�c allegation against Defendant No. 5 and the
alleged second plan, which was got approved by Defendant No. 5
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through misrepresentation and fraud. It was pleaded that by way of
modi�cation, Defendant No. 16 is seeking a mandatory injunction in its
favour in form of permission allowing it to carry out construction upon
the alleged area, which cannot be granted in the Plainti�’s suit, and
without �ling any counter-claim. It was pleaded that the relief of
injunction was granted not only against Defendant Nos. 1 to 5, but even
against Defendant Nos 13 and 14 i.e. the Corporation.
10.The Trial Court by the impugned order dated 12
th
November, 2021
noted that the Defendant No. 16 is now in possession of l and
admeasuring 366 square meters which is not part of Survey No. 69/A(P).
It further held that the land admeasuring 5530.94 square meters is not
property identi�ed as per conveyance deed and the land needs to be
demarcated before it is taken up for development. It further held that
by way of the report of Court Commissioner, there is no subsequent
development by which temporary injunction needs to be modi�ed and
dismissed the application.
SUBMISSIONS
11.Mr. Datar, learned counsel for the Appellant would submit that
there is admission in the plaint about the alienation in favour of
Defendant No 5 through whom Defendant No 16 claims. He submits
that Defendant No. 5 had purchased the land admeasuring 5530.94
square meters on 23
rd
January, 1973 by registered sale deed executed
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by the Plainti�s, and on 29
th
June, 2004, granted development rights in
favour of Defendant No. 15, who thereafter, applied and secured
building permission on 5
th
February, 2009. The commencement
certi�cate was granted on 11
th
June, 2010, and the revised building
permission came to be issued by Kalyan Dombivli Municipal Corporation
on 15
th
January, 2011. On 18
th
July, 2011, development rights were
assigned to Defendant No 16. He submits that it is only on 21
st
June,
2011, the Special Civil Suit No. 309 of 2011 came to be �led in respect of
2/3rd share in suit properties, which does not include the alienated
properties. He would submit that the subject matter of suit excludes the
property already sold by the Plainti�s, and the partition sought is in
respect of the balance property.
12.He would submit that the injunction granted below Exhibit 5 was
in respect of area admeasuring 95769.40 square meters of Survey No.
69A/(P). He submits that the Trial Court in the order below Exhibit 5
accepted the sale in favour of the Defendant No. 5, but has held that
dispute is regarding its location as Survey No. 69A(P) is not yet
demarcated, and therefore, it is necessary to restrict the activities of
Defendant No. 5 too.
13.Mr. Datar would further point out the pleading in the plaint that
on the basis of Taluka Inspector of Land Records (“TILR”) survey carried
out in the year 2007, the Defendant No. 4 has got the entire Survey No.
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69/A(P) sub-divided. He submits that therefore the �nding of the Trial
Court that there is no demarcation of Survey No. 69A(P) is erroneous.
He would further point out that the order dated 6
th
February, 2012
passed below Exhibit 5 was challenged by the Defendant No. 16 by �ling
Appeal from Order which came to be disposed of on 30
th
January, 2017
on the ground that the impugned order was operating since the last �ve
years, and therefore, there is no need to interfere with a direction to
dispose of the suit within a period of two years. He submits that till
date, the suit is still at the stage of framing issues.
14.He would submit that on 23
rd
June, 2016, an application came to
be �led by Defendant No. 16 under Order XXVI Rule 9 of CPC for
appointment of Court Commissioner, and by order dated 18
th
February,
2017, the Trial Court appointed Deputy Superintendent of Land Records
as Court Commissioner to carry out measurement and demarcation.
15.He would further point out that the conveyance of the year 1973
describes the boundaries in the schedule of the conveyance deed. He
would further point out the map prepared by the Court Commissioner
wherein, the construction of the Defendant No 16 has been clearly
shown. He would also draw attention of the Court to the photographs
placed on record in order to demonstrate the hardship caused to the
Defendant no 16 by reason of the construction having been halted by
the impugned order. He would further submit that the Defendant No 16
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would not carry out any construction in the disputed 366 square meters.
16.Per contra, Mr. Kanade, learned counsel for the original Plainti�,
would submit that application �led under Order 39 Rule 4 of CPC also
sought additional relief of grant of development permissions, which is
outside the scope of Order 39 Rule 4. He would further submit that
under the statutory provisions, the injunction passed under Order 39
Rule 1 and 2 can be modi�ed upon a change of circumstances, and the
report of the Court Commissioner cannot constitute change of
circumstances, as its genuineness is to be tested during trial.
17. He would further submit that Survey No 69A/P was not
demarcated and there is a speci�c pleading in the plaint that TILR
survey was carried out in the year 2007 and Survey No 69/A(P) was sub-
divided without knowledge of the Plainti�s and upon
misrepresentation. He would further point out that during the hearing
of Exhibit 5 application, the Defendant No. 5 through whom the
Defendant No. 16 claims appeared and was heard.
18.He would further point out the speci�c pleading in the plaint
about misrepresentation by Defendant Nos. 4 to 12, that the survey is
being carried out with the consent and knowledge of the Plainti�. He
submits that the building plans were sanctioned by misrepresentation,
and therefore, the planning authorities are restrained from granting any
further planning permissions. He would submit that the Plainti�s in
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reply to the application have denied correctness of the report under
Order 26 Rule 9, which cannot be said to be conclusive. He would
further submit that if it is found that an area of more than 366 square
meters as alleged has been encroached, and the Defendant No 16 is
allowed to construct and sell units, it will create an irreversible situation
for the Plainti�s. He would further submit that in 1973, the original
Defendant No. 5 purchased 5530.94 square meters of land, and on 29
th
June, 2004 granted development rights to Defendant No. 15. He would
submit that on 21
st
June, 2011 the Plainti�s �led suit for declaration
and partition, and on 18
th
July, 2011, Defendant No. 15 assigned the
rights to the Defendant No 16. He submits that on 6
th
February, 2012,
the order under Exhibit 5 was passed and original Defendant No. 5 was
heard. He submits that the Defendant No 16 challenged the order
below Exhibit 5 dated 6
th
February, 2012 in this Court, which refused to
interfere.
19. He submits that under the guise of seeking modi�cation, the
Defendant No 16 is seeking interim mandatory relief, which can be
granted only upon adjudication of the suit. He would further submit
that in the absence of counterclaim and without seeking any a�rmative
relief, the Defendant No 16 cannot indirectly obtain through an
application for modi�cation, a decree for mandatory injunction or any
other substantial mandatory relief. He would submit that the Plainti�s
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are ready for an expeditious hearing and �nal disposal of the suit, and
are willing to proceed with the Trial Court. In support, he relies upon the
following decisions :-
(i) Madhavlal Narayanlal Pittie And Others vs Madhavlal
Narayanlal Pittie And Others
1
(ii) Pidilite Industries Limited vs Jubilant Agri And Consumer
Products Limited
2
(iii) Sundaram Pillai And Others vs V. R. Pattabiraman And
Others
3
20.In rejoinder, Mr. Datar would submit that as the pleading in the
plaint was about misrepresentation in the survey, a fresh survey was
carried out by the Court Commissioner, which was permitted by the Trial
Court. He submits that the High Court in the challenge to the �rst order
of injunction did not interfere, as the injunction order was operating for
last about �ve years, which did not preclude the Defendant No 4 from
�ling an application under Order 39 Rule 4 by reason of changed
circumstances. He would submit that if the Court Commissioner's map
at page 166 is juxtaposed with the sale deed, the same would tally as
per the boundaries mentioned in the sale deed. He submits that the
Plainti�s' case is of encroachment against the present Defendant No 16
1 2017 SCC Online Bom 1796
2 2016 SCC Online Bom 14093
3 (1985) 1 SCC 591
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and as the Defendant No 16 have title, and there is no challenge to the
sale deed of 1973, there can be no grant of injunction. He submits that
the order below Exhibit 5 restrains Defendant Nos. 13 and 14 from
sanctioning any development plan over the suit properties without
giving opportunity of hearing to the Plainti�s, and without written
permission/consent of the Plainti�, and therefore, the application can
also be considered as an application for seeking consent of the Plainti�s
for development.
21.I have considered the submissions and perused the record.
22.During the hearing, as the suit was already expedited by order of
the year 2017, this Court made an attempt to verify whether the suit
can be disposed of in a time bound manner. This Court noticed that
there are various applications pending before the Trial Court, which
would consume time and no timelines can be �xed for expeditious
disposal of the suit as there is every possibility of every order being
challenged in the higher forum. Even after 15 years, the suit is still at
the stage of framing issues and deciding interim applications.
23.The impugned order has been passed on an application �led
under Order 39 Rule 4 of CPC seeking modi�cation/variation of the
Exhibit 5 order dated 6
th
February, 2012. Order 39 Rule 4 of CPC
provides that an order for injunction may be discharged, varied or set
aside and the 2
nd
proviso permits variation of order where the same is
Arya Chavan 16 of 26
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necessitated by a change of circumstances or unless the Court is
satis�ed that the order has caused undue hardship to that party.
24.The statutory provisions therefore permit the order passed under
Order 39 Rule 1 and 2 to be modi�ed even where the order causes
undue hardship to that party. In the present case, the application under
Order 39 Rule 4 is premised on change of circumstances, which is the
Court Commissioner’s report, by which the area of 6615 square yards
under construction and encroached portion of about 366 square meters
is identi�ed.
25.In the order passed below Exhibit 5 on 6
th
February, 2012, the Trial
Court has held that in respect of Survey No 69/ A(P), the dispute is
about the location of portion sold to Defendant No 5 and should await
demarcation till trial. The Exhibit 5 order reads as under:
ORDER:
“ Application is allowed with costs.
1) Defendant No 1 to 12 are hereby temporarily restrained
from creating any kind of third party interest, carrying out any
kind of construction, development over the suit properties till
the �nal disposal of suit through themselves, their agents,
servants etc
2) Defendant No 13 and 14 are hereby temporarily restrained
from sanctioning any development plan over the suit
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properties without giving opportunity of hearing to plainti�
and without written consent/permission of plainti� till �nal
disposal of the suit.
3) Both parties to bear their own costs.”
26.In so far as order below Exhibit 5 is concerned, the same has
attained �nality and the present issue is in respect of modi�cation of
Exhibit 5 order.
27.The order of Trial Court dated 6
th
February, 2012 below Exhibit “5”
is premised on the reasoning that Survey No 69 A(P) is not yet
demarcated by following due process of law. Subsequently, the
Defendant No 16 applied for appointment of Deputy Superintendent of
Land Records as Court Commissioner for carrying out survey and
measurement of Survey No 69/A(P) and to prepare the map and �le
report. The said application came to be allowed and measurement of
Survey No 69/A(P) was carried out. The order of Trial Court dated 18
th
February, 2017 allowing the application for appointment of Court
Commissioner has held in paragraph 9 as under:
“On perusal of pleadings it reveals that plainti�s have alleged
encroachment on the suit properties and further disput ed some
boundaries. In view of this position and considering the nature of dispute
and reliefs sought, I am of the view that application needs to be allowed.
No prejudice will cause to any of the parties if the suit property No 1 is
surveyed, measured and demarcated. In order to identify suit property No
1 and so as to resolve the dispute as to the boundaries, location and its
identi�cation the matter is required to be elucidate by appointing a Court
Commissioner.”
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28.Clause 4 of the operative part of order reads thus:
“4. The Court Commissioner is directed to conduct survey, measurement,
demarcation of survey of land admeasuring 6615 sq yards of Survey No
69/A(P) and to submit his report on or before 11/04/2017.”
29.Accordingly, the Court Commissioner has surveyed the land
admeasuring 6615 square yards of Survey No 69/A(P) and submitted its
report. The map prepared by the Court Commissioner re�ects the
construction on Survey No 69/A(P) and the encroached portion of about
366 square meters on land not falling within Survey No 69/A(P). The
direction of Trial Court to the Court Commissioner was to demarcate the
land admeasuring 6615 square yards of Survey No 69/A(P), which has
been done by the Court Commissioner.
30.The property relevant for our purpose is land admeasuring
5530.94 square meters equivalent to 6615 yards of Survey No 69/A(P).
Paragraph 3 of the plaint describes the suit properties and in so far as
Survey No 69 /A(P) at Tisgaon is concerned, the area is described as
95769.40 square meters. The pleading in paragraph 11 is that Survey No
69A/P was originally admeasuring approximately 1,10,000 square
meters, and out of this total area, an area admeasuring 14,230.60
square meters came to be transferred to various persons with the
consent and knowledge of the Plainti�, which included Defendant No.
5, through whom present Defendant No 16 Appellant claims. It is
further pleaded that after the above-referred transfers to various
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persons, an area admeasuring 95,769.40 square meters continues to
remain in exclusive possession and ownership of HUF comprising of
Plainti� and Defendant No. 1.
31. The injunctive reliefs are granted by the Trial Court in respect of
suit properties, which excludes the area, which has been alienated with
the consent and knowledge of the Plainti�s. The injunctive reliefs
would therefore operate in so far as Survey No 69A/P is concerned on
an area admeasuring 95,769.40 square meters and which is in exclusive
possession of Plainti�s HUF. Even the restraint order against the
planning authorities is in respect of the same properties. It was not even
necessary for Defendant No 16 to challenge the injunction or seek
modi�cation as the property alienated in favour of Defendant No 5 was
excluded from the suit.
32.The plaint pleads about illegal sub-division of Survey No 69A/P in
2007 and bifurcation of plot and it is claimed that the Defendant No 5
has got plans sanctioned on portion which is not identi�ed and has
encroached on another portion of property, without the alienated plots
forming subject matter of the suit. The pleading itself describes the
area of Survey No 69A/P as the area which continues to remain in
possession of Plainti�’s HUF. Admittedly, the Defendant No 16 has
commenced construction over the alienated portion and the said area is
no longer in possession of Plainti�s HUF. The Court Commissioner’s
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report identi�es the said area, which is not in possession of the
Plainti�s and would stand outside partition.
33.The Plainti�s are parties to the deed of conveyance on 23
rd
January, 1973 in favour of Defendant No 5 in respect of land
admeasuring 6615 square yards described in the plan annexed to the
conveyance and as described in the schedule. The basis for the
injunction qua the Defendant No 5 was that Survey No 69/A(P) had not
been demarcated by following due process of law. The Cour t
Commissioner has thereafter duly surveyed, measured and demarcated
the land admeasuring 6615 square yards of Survey No 69/A(P). As by
virtue of the order of Trial Court, the land admeasuring 6615 square
yards out of Survey No 69/A(P) has been surveyed, measured and
demarcated by the Court Commissioner, the preparation of report and
map by the Court Commissioner’s report constitutes changed
circumstances for exercising powers under Order 39 Rule 4 of CPC.
34.Even if the Court Commissioner’s map is disputed by the
Plainti�s, the Plainti�s have executed the conveyance deed with map
annexed in the year 1973 identifying the area sold to Defendant No 5.
There is implicit admission by the Plainti�s that the Defendant No 5 is
in possession of the area which has been alienated in his favour. There is
an admission in the plaint of sub-division having been carried out and by
the Court Commissioner’s report, the area of 6615 square yards has now
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been identi�ed. The Plainti�s do not claim any right over the land
alienated in favour of Defendant No 5. The partition, if any, would take
place in so far as Survey No 69/A(P) is concerned, in respect of area in
exclusive possession of the Plainti�s, which excludes the area in
possession of the Defendant No 5 and consequently Defendant No 16.
35.It was pleaded in the application �led for appointment of Court
Commissioner that the Defendants have completed construction of
three slabs and have taken booking from various customers, and have
invested huge amount in project, and third party rights have been
created, and therefore, sought appointment of Deputy Superintendent
of Land Records to carry out a survey and measurement of Survey No.
69A(P), which hardship has occurred after the order of injunction was
passed.
36.The Trial Court dismissed the application, accepting the
contention of the Plainti�s that the allotted portion purchased by
Defendant No. 5 is not sub-divided as per the report of C ourt
Commissioner, and the excess land of 366 square meters, which is not
part of Survey No. 69/A(P) being in possession of Defendant No. 16.
37.The absence of demarcation by due process of law was the basis
for injunction and by appointment of Court Commissioner, the land was
surveyed, measured and demarcated, which is due process of law. The
Plainti�s cannot be heard to say that the genuineness of the map is
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disputed, when it pleads about suit property being area of Survey No
69A/P, which is in possession of Plainti�s HUF. The map showing
construction indicates the area being in possession of the Defendant No
16.
38.The Trial Court lost sight of its own order speci�cally directing the
Court Commissioner to demarcate land admeasuring 6615 square yards
of Survey No 69/A(P). Once the same has been done as per the order of
Trial Court, the land stood demarcated and identi�ed and the injunction
was then required to be modi�ed to the extent of the identi�ed land.
Even if the relief sought by the Defendant No 16 was for permission to
carry out construction on the area identi�ed by the Court
Commissioner, the relief could have been moulded appropriately.
39. The subsequent development of identi�cation of the land
purchased by the Defendant No 5 was a change in circumstanc es
necessitating modi�cation of order dated 6
th
February, 2012. In so far as
the encroached portion of 366 square meters is concerne d, the
submission of Mr. Datar is that no construction will be carried out in
respect of the disputed portion.
40.There is another reason why the order of 6
th
February, 2012 needs
to be modi�ed. The provisions of Order 39 Rule 4 permits modi�cation
in the eventuality, the order causes undue hardship to the person. In my
view, the present case is a �t case, where the injunction causes undue
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hardship to the Defendant No 16. After having sold the property to the
Defendant No 5 by registered conveyance deed alongwith map in the
year 1973 and despite exclusion of the alienated property from the suit
property, the Plainti�’s seeks to put shackles on the Defendant No 16’s
right to deal with their ownership property, on the specious plea of the
same not being identi�ed. If the area alienated in favour of Defendant
No 5 was not identi�ed, it is not clear as to how the Plainti�s are
identifying the balance area of Survey No 69A/P. The suit is of the year
2011 and even after 15 years and despite direction of this Court in the
year 2017 that the suit be decided within two years, the suit is still at
the stage of issues. The land admeasuring 6615 square yards, though
not being the subject matter of the suit and having being sub divided in
the year 2007 cannot be permitted to remain undeveloped till the �nal
adjudication of the Plainti�s rights. As the sale in the year 1973 is
admitted, the partition would then be e�ected only in respect of
balance portion of land apart from the land on which construction has
been commenced by Defendant No 16.
41.Dealing with the citations relied upon by Mr. Kanade, in
Madhavlal Narayanlal Pittie And Others vs Madhavlal Narayanlal
Pittie And Others (supra), the Co-ordinate Bench held that the new
matter must have such material bearing on the order passed earlier that
it was possible that the Court would have decided the matter otherwise
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had the material been pointed out to it earlier. This is precisely the case
here as the entire basis of injunction was that the Defendant No 5’s land
was not identi�ed, which now stands identi�ed. If the Court
Commissioner’s report would have been on record, the report read with
pleadings in the plaint, would have led to exclusion of Defendant No 5’s
plot from injunction.
42.There is no quarrel with the proposition of law enunciated in
Pidilite Industries Limited vs Jubilant Agri And Consumer Products
Limited (supra) and Sundaram Pillai And Others vs V. R. Pattabiraman
And Others (supra).
43.In light of the above discussion, as the land alienated in favour of
Defendant No 16 stands identi�ed by the map prepared by the Court
Commissioner, and the claim of partition by Plainti�s is in respect of
area which is in possession of Plainti�s HUF, there is identi�cation of
Defendant No 5’s land. The injunction order dated 6
th
February, 2012 is
therefore required to be modi�ed to exclude the land identi�ed in the
map of Court Commissioner. Hence the following order is passed:
O R D E R:
(a) The Appeal from Order is allowed.
(b) The order dated 12
th
November, 2021 passed below Exhibit
“226” rejecting the application for modi�cation is hereby
quashed and set aside.
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(c) The order dated 6
th
February, 2012 passed below Exhibit
“5” in Special Civil Suit No 309 of 2011 restraining the
Defendant No. 5 from creating any third party rights or
carrying out any development and restraining Defendant Nos.
13 and 14 from sanctioning any development plan without
hearing the Plainti�s and without written consent/permission
of Plainti�s is modi�ed to exclude the land of Defendant No.
5 in respect of which development rights are given to
Defendant No. 16, admeasuring 6615 square yards of Survey
No 69/A(P) as identi�ed in the Court Commissioner’s map.
44. Interim Applications do not survive for consideration and stand
disposed of.
[SHARMILA U. DESHMUKH, J.]
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