Bombay High Court

ASHROBA BHAURAO MOREversusBHAGWANRAO RAMRAO DESHMUKH

Disposal: DISPOSED OFF
Bench: S G CHAPALGAONKAR

Holding

The High Court held that the temporary injunction could not be granted as the petitioner had lost possession of the encroached area and must seek a decree of possession, thus affirming the appellate court’s setting aside of the injunction.

Summary

The petitioner filed a writ petition challenging the District Judge’s order that set aside a temporary injunction previously granted by the Civil Judge restraining the respondent from obstructing the petitioner’s possession of a house property and an adjoining 17‑ft strip. The civil suit alleged that the petitioner owned the property and that the respondent was encroaching and obstructing peaceful possession. The trial court, relying on Gram Panchayat records, granted a temporary injunction pending the suit. On appeal, the District Judge held that the petitioner had already lost possession of the encroached area and could not obtain an injunction, directing him to seek a decree of possession instead. The High Court affirmed the appellate court’s decision, finding no jurisdictional error under Article 227 of the Constitution, and dismissed the writ petition.

Issues considered

Whether the temporary injunction restraining the respondent from obstructing possession should be restored.
Whether the trial court erred in granting the injunction based on Gram Panchayat records.
Whether the appellate court correctly set aside the injunction.
Whether the High Court has jurisdiction under Article 227 to interfere with the appellate order.

Subjects

property law
injunction
encroachment
civil appeal
jurisdiction
Article 227
temporary injunction
possession

Judgment

2026:BHC-AUG:3203

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

942 WRIT PETITION NO. 627 OF 2026

ASHROBA BHAURAO MORE
VERSUS
BHAGWANRAO RAMRAO DESHMUKH
...
Mr. N. R. Shaikh, Advocate for the Petitioner

CORAM : S. G. CHAPALGAONKAR, J.
DATED : 23rd JANUARY, 2026

P. C. :-

1. The Petitioner impugns order dated 19.12.2025 passed by District

Judge, Parbhani and seeks restoration an injunction order which was passed

by learned Civil Judge, Senior Division, Parbhani in Regular Civil Suit No. 145

of 2025, whereby Respondent was restrained from obstructing Petitioner’s

possession over suit property.

2. The Petitioner is Plaintiff in Regular Civil Suit No. 145 of 2025.

The suit has been instituted for relief of perpetual injunction, in respect house

property No. 47 admeasuring 42 x 23 fts along with open space, situated at

Shahapur. It is contention of Plaintiff that he is owner of suit property and

Defendant without right or concern is obstructing in peaceful possession.

Plaintiff lodged complaint with po lice station regarding illegal acts of

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Defendant. The Petitioner/Plaintiff had also filed an application in suit below

Exhibit 5 for grant of temporary injunction. The Trial Court after prima facie

consideration of rival contentions restrained Defendant from causing

obstruction to Plaintiff’s possession over suit property pending disposal of

suit.

3. The aggrieved Defendant filed Misc. Civil Appeal No. 56 of 2025

before District Judge-2, Parbhani, who allowed appeal by setting aside order

dated 29.10.2025 passed by Trial Court below Exhibit 5. Eventually rejected

the Petitioner’s temporary injunction application.

4. Mr. N. R. Shaikh, the learned Advocate appearing for Petitioner

would submit that Trial Court had rightly appreciated Gram Panchayat record

depicting Petitioner’s possession and granted temporary injunction in favour

of Plaintiff, however, Appellate Court disturbed said order on erroneous

counts. The Gram Panchayat record is sufficient to prima facie establish

Plaintiff’s title and possession over suit property. As such, well reasoned order

passed by Trial Court could not have been disturbed.

5. The reasons recorded by learned District Judge show that

Plaintiff himself had made a complaint dated 08.05.2025 to Superintendent of

Police, alleging that Defendant has encroached over his plot to extent of 17 ft.

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from northern side. On 09.05.2025 Plaintiff had filed an application to T.I.L.R.

seeking measurement of suit property and removal encroachment of 17 ft

made by Defendant.

6. Aforesaid facts clearly demonstrates that Defendant is in

possession of disputed 17 ft. area on which Plaintiff claims ownership. In this

contingency, Plaintiff ought to have filed suit for removal encroachment and

possession.

7. The aforesaid reasoning appears to be consistent with record.

Plaintiff’s documents demonstrate that he lost possession of 17 ft. area. In this

backdrop, relief of temporary injunction cannot be granted in favour of

Plaintiff. As rightly observed by learned District Judge, remedy of Plaintiff is

to seek possession of encroached area by making necessary amendment in

plaint. Plaintiff will have to establish his right/title over so called encroached

area in possession of defendant and seek decree of possession.

8. In that view of matter, no jurisdictional error is brought to the

notice of this Court to invoke powers under Article 227 of Constitution of

India, hence, Writ Petition stands rejected.

(S. G. CHAPALGAONKAR, J.)

ssp

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