M/S. SKYLINE DEVELOPERS, THR. ITS PARTNER SHRI NARENDRA JANARDAN PATHAKversusSURESH YASHWANT PHADKE AND OTHERS

                                                            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 firm)          ]
        Having office at Matrukrupa Apartment, ]
        Ground floor, Joshi Baug, Kalyan (W), ]
        District Thane, through its partner    ]
        Shri Narendra Janardan Pathak          ]
                                                 ...Applicant/
                                               ]
                                                    Appellant

       Versus

1)      Suresh Yashwant Phadke                  ]
        Age: 52 years, Occ.: Doctor             ]
        Residing at Phadke Bunglow,             ]
        Doodh Naka, Kalyan (W) - 421 301.       ]
2)      Dilip Yashwant Phadke                   ]
        Age: Adult, Occ.: Retired               ]
        Residing at Phadke Bunglow,             ]
        Doodh Naka, Kalyan (W) - 421 301.       ]
3)      Vishwanath Anant Phadke                 ]
        Since deceased, through heirs and legal ]
        representatives:                        ]
3/1)    Smt. Gauri Upendra Gharpure             ]
        Age: 63 years, Occ.: Housewife          ]
        Residing at Yashodhan Bungalow,         ]
        Parnaka, Kalyan (W), Dist. Thane.       ]
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.      ]
3/4)    Netra Anil Shotri                         ]
        Age: 52 years, Occ.: Housewife            ]
        Flat 1564, Sadashiv Peth, Pune - 411 030. ]
4)      Sudha Anant Gavali                       ]
        Age: Adult, Occ.: Business               ]
        Residing at Chakki Naka, Tisgaon, Kalyan ]
        (E).                                     ]
5)      Navin Anant Gavali                       ]
        Age: Adult, Occ.: Business               ]
        Residing at Chakki Naka, Tisgaon, Kalyan ]
        (E).                                     ]
6)      Yogesh Kamal Singh                          ]
        (Since deceased, through his legal heirs)   ]
6/1)    Dharmavati Yogesh Singh (wife)              ]
        Age: 30 years, Occ.: Housewife              ]
6/2)    Aniket Yogesh Singh (son)                   ]
        Age: 10 years                               ]
6/3)    Arpita Yogesh Singh                         ]
        Age: 8 years                                ]
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.                          ]
7)      Shaligram Baijanath Tiwari              ]
        Since deceased, through heirs and legal ]
        representatives:                        ]
7/1)    Kailashnath Sallikram Tiwari            ]
        Since deceased, through heirs and legal ]
        representatives :                       ]
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.                       ]
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.                                  ]
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.                                ]
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. ]
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.                              ]
7/2)    Vijaynath Shalikram Tiwari                ]
        Age: 61 years, Occ.: Business             ]
7/3)    Amarnath Shalikram Tiwari                 ]
        Age: 59 years, Occ.: Business             ]
7/4)    Prabhunath Shalikram Tiwari               ]
        Age: 56 years, Occ.: Advocate             ]
7/5)    Vimalnath Shalikram Tiwari                ]
        Age: 49 years, Occ.: Advocate             ]
7/6)    Dinesh Shalikram Tiwari                   ]
        Age: 48 years, Occ.: Business             ]
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.        ]
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.                                   ]
8)      T.K. Gopal Krishnan                     ]
        Age: Adult, Occ.: Business              ]
        Residing at Dinesh Bhavan, Chakki Naka, ]
        Tisgaon, Taluka Kalyan.                 ]
9)      Chinan Potyan Dharman                  ]
        Age: Adult, Occ.: Not known            ]
        Residing at Plot No.69/A, Chakki Naka, ]
        Tisgaon, Taluka Kalyan.                ]
10)     Kacheshwar Baban Choudhary (Since ]
        deceased, through his legal heirs) ]
10/1)   Sakhubai Kacheshwar Choudhary            ]
        Age: 78 years, Occ.: Housewife           ]
10/2)   Vandana Rajendra Choudhary               ]
        Age: 48 years, Occ.: Housewife           ]
10/3)   Avinash Rajendra Choudhary               ]
        Age: 28 years, Occ.: Business            ]
10/4)   Anil Rajendra Choudhary                  ]
        Age: 24 years, Occ.: Business            ]
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.               ]
11)     Krushna Koteshwar Choudhary           ]
        Age: Adult, Occ.: Not known           ]
        Residing at Plot No.69A, Chakki Naka, ]
        Tisgaon, Taluka Kalyan.               ]
12)     Indappa Timmanna China                ]
        Age: Adult, Occ.: Not known           ]
        Residing at Plot No.69A, Chakki Naka, ]
        Tisgaon, Taluka Kalyan.               ]
13)     Idanmal Bakhalmal Lund                ]
        Age: Adult, Occ.: Not known           ]
        Residing at Plot No.69A, Chakki Naka, ]
        Tisgaon, Taluka Kalyan.               ]
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).                                   ]
16)     The Assistant Commissioner              ]
        The Town Planning Department            ]
        Kalyan Dombivali Municipal Corporation, ]
        Shankar Rao Chowk, Kalyan (W).          ]
17)     M/s. Matrukrupa Enterprises            ]
        (registered partnership firm)          ]
        Having office at Matrukrupa Apartment, ]
        Ground floor, Joshi Baug, Kalyan (W), ]
        District Thane.                        ]
        Through its partner                    ]
        Shri Vijaynarayan Ramcharan Pandit     ]
                                                     ...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 final 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 modification 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 filed seeking interalia

declaration of 2/3rd share in the suit properties, partition, separate

possession and injunction. The plaint assailed the sanctioning of plans

dated 4th May, 2011 and 15th January, 2011 by the Defendant

Corporation. The Plaintiff’s case is of undivided share of the Plaintiffs

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 Plaintiffs, 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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filed his say. The Trial Court considered the Plaintiffs 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 Plaintiffs 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 giving

opportunity of hearing to the Plaintiffs and without written

consent/permission of Plaintiffs.

4.      Initially Defendant No 16 was not impleaded as Defendants to the

suit and filed an application under Order 1 Rule 10 of CPC for

impleadment, which came to be rejected on 2nd April, 2013 as against

which the Defendant No 16 approached the High Court. Vide order

dated 30th 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 30th 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 23rd June, 2016, the Defendant No 16 filed 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 identified 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 filed an

application under Order 39 Rule 4 of CPC seeking modification/variation

of the order dated 6th 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 Plaintiffs 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

modified.

8.      The Plaintiffs opposed the application stating that the suit has

been filed 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 filing an Appeal, and thus, the said order

has attained finality.

9.      It was pleaded that the Plaintiffs in paragraph no. 11(A)(viii) of the

plaint have made specific 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

modification, 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 Plaintiff’s suit, and

without filing 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 land

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 identified 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 modified 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 23rd January, 1973 by registered sale deed executed


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by the Plaintiffs, and on 29th June, 2004, granted development rights in

favour of Defendant No. 15, who thereafter, applied and secured

building permission on 5th February, 2009. The commencement

certificate was granted on 11th June, 2010, and the revised building

permission came to be issued by Kalyan Dombivli Municipal Corporation

on 15th 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 filed 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 Plaintiffs, 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 finding 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 filing

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 five

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 23rd June, 2016, an application came to

be filed 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 Plaintiff,

would submit that application filed 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 modified 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 specific 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   Plaintiffs     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 specific 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 Plaintiff. 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 Plaintiffs 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 Plaintiffs. 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 21st June, 2011 the Plaintiffs filed suit for declaration

and partition, and on 18th 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 6th February, 2012 in this Court, which refused to

interfere.

19.      He submits that under the guise of seeking modification, 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 affirmative

relief, the Defendant No 16 cannot indirectly obtain through an

application for modification, a decree for mandatory injunction or any

other substantial mandatory relief. He would submit that the Plaintiffs


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are ready for an expeditious hearing and final 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 Others1

      (ii) Pidilite Industries Limited vs Jubilant Agri And Consumer

      Products Limited2

      (iii) Sundaram Pillai And Others vs V. R. Pattabiraman And

      Others3

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 first order

of injunction did not interfere, as the injunction order was operating for

last about five years, which did not preclude the Defendant No 4 from

filing 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

Plaintiffs' 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 Plaintiffs, and without written

permission/consent of the Plaintiff, and therefore, the application can

also be considered as an application for seeking consent of the Plaintiffs

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 fixed 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 filed

under Order 39 Rule 4 of CPC seeking modification/variation of the

Exhibit 5 order dated 6th February, 2012. Order 39 Rule 4 of CPC

provides that an order for injunction may be discharged, varied or set

aside and the 2nd proviso permits variation of order where the same is


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necessitated by a change of circumstances or unless the Court is

satisfied 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 modified 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 identified.

25.     In the order passed below Exhibit 5 on 6th 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 final 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 plaintiff

      and without written consent/permission of plaintiff till final

      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 finality and the present issue is in respect of modification of

Exhibit 5 order.

27.     The order of Trial Court dated 6th 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 file

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 plaintiffs have alleged
      encroachment on the suit properties and further disputed 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
      identification 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 reflects 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 Plaintiff, 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

Plaintiff 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 Plaintiffs. 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 Plaintiffs 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

modification 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 identified 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 Plaintiff’s HUF. Admittedly, the Defendant No 16 has

commenced construction over the alienated portion and the said area is

no longer in possession of Plaintiffs HUF. The Court Commissioner’s


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report identifies the said area, which is not in possession of the

Plaintiffs and would stand outside partition.

33.     The Plaintiffs 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 Court

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

Plaintiffs, the Plaintiffs 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 Plaintiffs 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 identified. The Plaintiffs 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 Plaintiffs, which excludes the area in

possession of the Defendant No 5 and consequently Defendant No 16.

35.     It was pleaded in the application filed 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 Plaintiffs that the allotted portion purchased by

Defendant No. 5 is not sub-divided as per the report of Court

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

Plaintiffs 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 Plaintiffs 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 specifically 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 identified and the injunction

was then required to be modified to the extent of the identified land.

Even if the relief sought by the Defendant No 16 was for permission to

carry out construction on the area identified by the Court

Commissioner, the relief could have been moulded appropriately.

39.       The subsequent development of identification of the land

purchased by the Defendant No 5 was a change in circumstances

necessitating modification of order dated 6 th February, 2012. In so far as

the encroached portion of 366 square meters is concerned, 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 6th February, 2012 needs

to be modified. The provisions of Order 39 Rule 4 permits modification

in the eventuality, the order causes undue hardship to the person. In my

view, the present case is a fit 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 Plaintiff’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 identified. If the area alienated in favour of Defendant

No 5 was not identified, it is not clear as to how the Plaintiffs 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 final

adjudication of the Plaintiffs rights. As the sale in the year 1973 is

admitted, the partition would then be effected 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 identified, which now stands identified. 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 identified by the map prepared by the Court

Commissioner, and the claim of partition by Plaintiffs is in respect of

area which is in possession of Plaintiffs HUF, there is identification of

Defendant No 5’s land. The injunction order dated 6 th February, 2012 is

therefore required to be modified to exclude the land identified 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 12th November, 2021 passed below Exhibit

      “226” rejecting the application for modification is hereby

      quashed and set aside.


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      (c) The order dated 6th 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 Plaintiffs and without written consent/permission

      of Plaintiffs is modified 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 identified 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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