RAJENDRA KUNDLIK NIKAMversusFEROZ MUSAMIYA MANIYAR

2026:BHC-AUG:39044



                                                 (1)                   978 sa 490.26

                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     BENCH AT AURANGABAD

                               978 SECOND APPEAL NO. 490 OF 2026
                             WITH CIVIL APPLICATION NO. 9633 OF 2026

                                    RAJENDRA KUNDLIK NIKAM
                                            VERSUS
                                    FEROZ MUSAMIYA MANIYAR

                                                …..
                       Advocate for Appellant : Mr. Vikas Gangadhar Kodale
                      Advocate for Respondent : Mr. Shaikh Shoyab (caveator)
                                                …..

                                           CORAM :      SANJAY A. DESHMUKH, J.
                                           DATE :       27.08.2026

           Per Court :-

           1.             The present appeal has been preferred by the unsuccessful

           defendant against the judgment and decree passed by the learned District

           Judge-2, Latur, in R.C.A. No. 132 of 2025, dated 16.07.2026. The said appeal

           had been preferred by the present appellant against the judgment and decree

           passed by the learned Civil Judge, Junior Division, Latur, in R.C.S. No. 344 of

           2020, dated 19.10.2023. The said suit was instituted for a prohibitory and

           mandatory injunction, seeking to restrain the defendant from causing any

           obstruction to the plaintiff's rights in respect of Plot No. 55 and to direct the

           defendant to demolish the construction made by him thereon.


           2.             The learned advocate for the appellant submitted that no

           measurement was carried out. He further submitted that the construction of
                                      (2)                  978 sa 490.26

the house in question was made by the defendant. According to him, the

plaintiff is the owner of Plot No. 55, whereas the defendant is the owner of

Plot No. 71. He pointed out that the said plots are not adjacent to each other.

The ownership of the respective properties of the plaintiff and the defendant

is not in dispute. He, therefore, submitted that a substantial question of law

arises for consideration in the present appeal and prayed that the same be

formulated. He further prayed for stay to the execution and operation of the

impugned judgment and decree.


3.          Learned Advocate for the Caveator, Mr. Shaikh, pointed out that

the appellant/defendant is not the owner of the adjoining plot. However, he

knowingly commenced construction on the plaintiff’s plot. Therefore, the

plaintiff instituted the suit. Though the defendant appeared in the suit, he

failed to file his written statement. Consequently, the suit proceeded without a

written statement from the defendant.


4.          In the aforesaid circumstances, it is not necessary to appoint an

additional Surveyor for measurement of the suit property and to ascertain

whether any encroachment has been made thereon. In fact, according to the

learned Advocate for the caveator, the present case is one of trespass. He

invited the attention of this Court to the reasons assigned and findings

recorded by both the Courts below and, therefore, prayed for dismissal of the
                                       (3)                 978 sa 490.26

appeal in limine.


5.           Upon perusal of the pleadings of both the parties and the reasons

and findings recorded by both the Courts below, this Court is of the view that

the properties of the appellant and the respondent are distinct and separate.

The respondent has come with a specific case that he is the owner of Plot No.

55 and that the appellant has encroached upon the said plot. Having regard to

the facts and circumstances of the case and the reasons recorded in the

impugned judgments, this Court finds that the appellant/original defendant is

not the owner of the adjoining plot of the respondent/original plaintiff.

Nevertheless, he commenced construction over Plot No. 55, compelling the

plaintiff to approach the Court for appropriate reliefs.


6.           In the circumstances, the reliefs of mandatory and prohibitory

injunction have been rightly granted in favour of the respondent/original

plaintiff. No substance is found in the grounds raised in the appeal.

Consequently, no interference is warranted with the concurrent findings

recorded by the Courts below. Hence, the appeal is dismissed in limine. Civil

Application No. 9633 of 2026 stands disposed of accordingly.



                                                  [SANJAY A. DESHMUKH, J.]


mubashir