Final Order 1

Order Details: Notice of Motion
Pdf Text: Dt.30.09.2019
SU 235/19
CORAM : H.H.J SHRI.C. V. MARATHE (C.R.NO.8)
Adv. Aditya Khare for plaintiff present.
Adv. Mrs. R.M. Hazare h/f Adv. Mr. S.C. Khandagale for Deft
no.2 to 4/MCGM present.
Adv. Ms. Mansi for deft. no. 1 is present.
KB
LO
Order on NM No. 2540/19 :
This is an application by NM under order XXXIX rule 2A of the
Code of Civil Procedure, 1908 for alleged disobedience of this
Court's order dated 24092018 whereby the defendants were
restrained from dispossessing the plaintiffs from a plot of land
ad measuring around 5142 sq.ft. being part of CTS No. 165 (Part)
in survey no. 14 Hissa No. 8. According to the plaintiffs, in
defiance of the said order the defendant no. 1/contemnor has
made encroachment on the suit plot on 26062019 and in support
of the allegation they have relied upon the photographs of the suit
plot. According to Ld. Adv. for the plaintiffs, the said photographs
clearly show existence of 2 rooms on the suit plot which are
encroached by defendant no. 1. on all these counts the plaintiff
have prayed to detain the contemnor in Civil Prison and to appoint
Court receiver in respect of Suit Plot. In reply to the Said NM, the
defendant no. 1 has come up with the case that the alleged
photographs are in respect of land having survey no. 14 Hissa no. 1
corresponding to CTS No. 165 and 165 (14). it is further contended
by defendant that the said structures are in possession of Surjeet
Singh Sehra since 1974 and he is running garage therein. It is case
of the deft. no. 1 that the said Hissa no. 1 of Survey no. 14 is
purchased by him and there is no substance in the allegation that he
made encroachment on the suit plot.
After going through rival contentions of the parties, it can be
seen that there is dispute about one plot of land which is claimed by
the plaintiff to be Hissa no. 8 and claimed by the defendant no. 1 to
be Hissa No. 1 of survey no. 14. The photographs produced by the
plaintiff do not clarify whether the structures seen in the said
photographs are located on Hissa no. 8. Moreover, the said
photographs are not proved by adducing evidence of the
photographer or by following procedure for proving the documents
under Indian Evidence Act. When the description of the plot of land
is under challenge then it is difficult to conclude about the alleged
encroachment at this initial stage of the proceeding. Ld. Adv for
plaintiff has argued that the defendant no. 1, a big developer, will
create fictitious record if he will be allowed to continue the breach
of injunction order. Ld. Adv. for the defendant no. 1 submits that by
making the instant prayers the plaintiffs want back door entry in
the suit plot. As discussed hereinearlier there is no clarity about the
description of the suit property /Plot to give finding about the
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alleged encroachment by defendant no. 1. It is not just and
convenient to appoint Court receiver for the allegations made in the
NM. Therefore, the NM is dismissed.
Earlier order in NM No. 4625/18, if any, to continue till
next date.
Adjd to 13012020 for NM No. 4625/18 Reply.
Judge
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