Case Note & Summary
The appellant, original plaintiff Baburao Ganpati Mali (since deceased, represented by legal heir Vishwanath Baburao Mali), filed Regular Civil Suit No.199 of 1976 seeking a permanent injunction to restrain defendants Balasaheb Anna Patil and the Chairman of Shetkari Sahakari Sakhar Karkhana Ltd from obstructing his possession of suit land bearing survey No.449/5, Gat No.1991 at village Mhaisal, Taluka Miraj, District Sangli. He also sought a mandatory injunction directing removal of murum laid on the road. The plaintiff purchased the land in auction on 3.6.1976 and obtained possession on 26.6.1976. Shortly thereafter, he alleged that defendants started constructing a road through his land. The defendants opposed the suit, contending that the land originally belonged to Narsingh Kulkarni who died heirless, after which it was taken over by the Government. The village society cultivated it for 10-12 years on behalf of the Government, then it was given to an ex-military man named Shinde, and finally purchased by plaintiff in auction. They claimed that a road existed on the suit land since the time of society cultivation and was used by villagers of Mhaisal, Kutwal, and Dhawli. The trial court dismissed the suit, and the first appellate court confirmed the dismissal. The plaintiff then filed this second appeal. The High Court, per Justice S.R. Sathe, dismissed the appeal, holding that the concurrent findings of fact regarding the existence of a public road and plaintiff's acquiescence could not be interfered with in a second appeal under Section 100 CPC as no substantial question of law arose.
Headnote
A) Property Law - Permanent Injunction - Public Right of Way - Suit for permanent injunction restraining defendants from obstructing plaintiff's possession and for mandatory injunction to remove murum from road - Plaintiff purchased land in auction and claimed exclusive possession - Defendants contended that a road existed on the land and was used by villagers as of right - Trial court and first appellate court dismissed suit holding that road was public and plaintiff had acquiesced - Second appeal dismissed - Held that concurrent findings of fact cannot be interfered with in second appeal unless perverse (Paras 1-3).
Issue of Consideration
Whether the plaintiff was entitled to a permanent injunction restraining the defendants from obstructing his possession of the suit land and a mandatory injunction directing removal of murum laid on the road, given the defendants' claim of a public right of way.
Final Decision
Second Appeal dismissed. The judgment and order of the first appellate court confirming dismissal of the suit are upheld.
Law Points
- Permanent injunction
- mandatory injunction
- public right of way
- easement by prescription
- acquiescence
- concurrent findings of fact
- second appeal limited to substantial question of law
