Bombay High Court

DADU SOPANA NITNAWAREversusHOUSABAI PRALHAD SHELAR AND ORS

Decided: 1 October 2026
Disposal: Disposed Off

Holding

The High Court set aside both the appellate and trial court injunction orders and directed measurement of the disputed lands before the suit is finally decided.

Summary

The petitioner claimed ownership of open land CTS No.73 and sought an injunction restraining the respondents from obstructing his possession and from constructing a compound wall. The trial court had granted a temporary injunction in his favour, which the appellate court set aside and instead granted an injunction to the respondents without finding that their house (CTS No.175/1) lay within CTS No.73. The petitioner challenged this reversal, arguing that the appellate court erred in finding the land to be public and in assuming a mandatory injunction was sought. The High Court observed that the factual issue of whether the respondents' house is situated within CTS No.73 remains unresolved and ordered a Court Commissioner to measure both parcels under Order 26 Rule 10 of the CPC. Consequently, the Court set aside both the appellate and trial court injunction orders, directed the measurements to be completed by 31 October 2026, and directed the trial court to decide the suit expeditiously.

Issues considered

Whether the appellate court correctly set aside the trial court's injunction in favour of the petitioner.
Whether the land CTS No.73 is public property.
Whether the respondents' house CTS No.175/1 is situated within CTS No.73.
Whether a Court Commissioner should be appointed under Order 26 Rule 10 of the CPC to measure the disputed lands.
Whether the injunction should remain in force pending the measurement and final determination of the suit.

Legislation cited

Code of Civil Procedure, 1908 — s. Order 26 Rule 10

Subjects

property dispute
injunction
measurement order
Civil Procedure Code
temporary injunction
appellate court
land records
CTS

Judgment

Neeta Sawant 907-WP-1282-2019.docx

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 1282 OF 2019

Dadu Sopana Nitinaware ...Petitioner

: Versus :

Housabai Pralhad Shelar & Ors. ...Respondents

Mr. Chaitanya Nikte a/w. Mr. Prajit S. Sahane, for the Petitioner.

Mr. Vanraj Shinde (through V.C.) with Mr. Sachin Padaye, for the
Respondents.

CORAM: SANDEEP V. MARNE, J.
DATED: 1 OCTOBER 2026.
P.C.:

1) The Petition challenges order dated 7 August 2018 passed
by the District Judge-5 allowing Misc. Civil Appeal No. 158 of 2018 filed
by the Respondents-Defendants. The Appellate Court has set aside the
order dated 28 November 2017 passed by the Trial Court granting
temporary injunction in favour of the Petitioner/Plaintiff thereby
restraining the Defendants from disturbing his peaceful possession of
suit property bearing CTS No.73 and from obstructing the Plaintiff
from constructing a compound wall around the suit property. While
setting aside the order dated 28 November 2017 and withdrawing the
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injunction in favour of the Plaintiff, the Appellate Court has granted
injunction in favour of the Defendants by allowing Defendants’
application at Exh.42 thereby restraining the Plaintiff from obstructing
Defendants’ possession over House No.175/1 (177/1).

2) I have heard Mr. Nikte, the learned counsel appearing for
the Petitioner-Original Plaintiff and Mr. Shinde, the learned counsel
appearing for the Respondents-Defendants.

3) Plaintiff claims ownership and possession in respect open
land bearing CTS No.73. Plaintiff relies on property card extract in
respect of the open land bearing CTS No.73 which bears Plaintiff ’s
name. Plaintiff also relies on Measurement Map in respect of CTS
No.173. On the other hand, Defendants claim rights and possession
over house property bearing CTS No.175/1 (177/1). Defendants in turn
rely upon specimen 8A extract issued by the Gram Panchayat to claim
rights in respect of the house property.

4) It is Plaintiff’s case that the two properties bearing CTS
No.73 and House Property No.175/1 are independent and distinct. The
Trial Court granted injunction in favour of the Plaintiff restraining the
Defendants from obstructing his possession of CTS No.73 by recording
a finding of fact that Defendants’ house is not situated in property
bearing CTS No. 73. The Appellate Court has not reversed this finding
nor has arrived at a conclusion that house of the Defendants is situated
within land bearing CTS no.73. The Appellate Court has gone on a
tangent by holding that Plaintiff is trying to encroach upon public
property. For recording this finding, the Appellate Court did not have
any material on record before it indicating that the land in respect of
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which rights are claimed by the Plaintiff is a public property. On the
other hand, the evidence on record prima facie indicates that Plaintiff’s
name is recorded in respect of CTS No.73. Another error committed by
the Appellate Court is in assuming that Plaintiff was seeking mandatory
interim injunction which was not factually the case. Plaintiff had
sought injunction to restrain the Defendants from obstructing his
possession and from obstructing him from constructing a compound
wall around CTS No. 73. The Appellate Court has thus recorded
perverse findings while withdrawing the order of injunction granted in
favour of the Plaintiff. The Appellate Court has also grossly erred in
granting injunction in favour of the Defendants without even recording
a finding that Defendants’ house is situated within the land bearing
CTS No.73.

5) It appears that during pendency of the present petition, an
application at Exhibit-62 was filed by the Plaintiff seeking appointment
of Court Commissioner under Order 26 Rule 10 of the Civil Procedure
Code. The application has been allowed by order dated 15 July 2021
and the Court Commissioner (Deputy Superintendent of Land
Records/Officers subordinate to him) is appointed to measure the land
bearing CTS No.73 and land bearing House Property no.175 /1. Once
measurements are conducted, the picture would be clear as to whether
the two properties are distinct or whether the house of the Defendants is
located within CTS No.73 or not. In my view therefore, the
measurements in pursuance of order dated 15 July 2021 needs to be
conducted in an expeditious manner. It is unfortunate that the
measurements are still not conducted though the order is passed on 15
July 2021. Accordingly, the Deputy Superintendent of Land Records

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needs to conduct the measurements in pursuance of order dated 15 July
2021 as expeditiously as possible and in any case before 31 October
2026. The Report prepared by the Deputy Superintendent of Land
Records shall assist the Trial Court in deciding the Suit finally.

6) Till the suit is decided finally, it would be appropriate to set
aside Appellate Court’s order dated 7 August 2018. I am also inclined
to set aside Trial Court’s injunction order dated 28 November 2017.
This is on account of an express statement made by Mr. Nikte that
during pendency of the Suit, the Plaintiff shall not construct compound
wall around the land bearing CTS No.73 to avoid any confrontation at
the site.

7) In view of the above discussion, I proceed to pass the
following order :
(i) The order dated 7 August 2018 passed by the Appellate
Court in Misc. Civil Appeal No. 178/2018 is set aside.

(ii) On account of statement made by the Plaintiff that
compound wall shall not be constructed around the suit
property till decision of the suit on a without prejudice basis,
the order dated 28 November 2017 passed by the Trial Court
is also set aside.

(iii) The Deputy Superintendent of Land Records shall
conduct measurements and shall submit Report before the
Trial Court in pursuance of order dated 15 July 2021 on /or
before 31 October 2026.

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(iv) The Plaintiff shall appear before the Deputy
Superintendent of Land Records alongwith copy of this order
downloaded from the website of the Court on 5 October 2026
and co-operate for expeditious completion of measurements.
Plaintiff shall bear the fees of urgent measurements, if
required to be paid.

(v) Similarly, Defendants shall also co-operate with the
Deputy Superintendent of Land Records for expeditious
conduct of measurements.

(vi) Based on the measurement map prepared by the Deputy
Superintendent of Land Records, the Trial Court shall proceed
to decide the Suit as expeditiously as possible, preferably
within a period of 6 months.

(vii) Both the sides shall co-operate with the Trial Court for
expeditious disposal of the Suit without seeking unnecessary
adjournments.

8) With the above directions, the Writ Petition is partly
allowed and disposed of.

9) All contentions of the parties are expressly kept open to be
decided at the time of final decision of the Suit.

Digitally
signed by
[SANDEEP V. MARNE , J.]
NEETA
NEETA SHAILESH
SHAILESH SAWANT
SAWANT Date:
2026.10.01
19:01:45
+0530

PAGE NO. 5 of 5
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