BABURAO GANPATI MALI Vs. BALASAHEB ANNA PATIL

JUDGEMENT

(1.) Appellant, the Original plaintiff in Regular Civil Suit No. 199 of 1976 has preferred this Appeal against the Judgment and Order passed by the Court of 3rd Additional district Judge, Sangli in Civil Appeal No. 94 of 1989 whereby the order passed by the 3rd jt. CJ. J. D. Miraj dismissing the plaintiff's suit for permanent injunction restraining defendants from obstructing plaintiffs possession of the suit land and for mandatory injunction directing the defendants to remove the Murum laid on the road in question was confirmed and appeal was dismissed. For the sake of convenience, hereafter the parties shall be referred to as plaintiff and defendants.

(2.) Brief facts giving rise to this appeal are as under: on 3. 6. 1976 plaintiff purchased the land bearing survey No. 449/5 Gat No. 1991 situated at village Mhaisal, Taluka Miraj, District Sangli in auction and thereafter he got possession of the same on 26. 6. 1976. Few days thereafter he found that the defendants 1 and 2 had started constructing a road through his land. He, therefore, filed a suit simplicitor of permanent injunction and also prayed that the defendants be directed to remove the Murum which they have laid on the road in question.

(3.) The said suit was opposed by the defendants. They contended that the suit land was originally owned by one Narsingh Kulkarni and as he died without any heir the suit land was taken by the Government. Thereafter the village society was cultivating the said land for a period of about 10 to 12 years on behalf of the Government and then it was given to one shinde, an ex-military man and lastly it was taken by the plaintiff in an auction sale. It is the contention of the defendants that since the time the said land was being cultivated by the society, one road was in existence in the suit land and the same was being used by the villagers of village Mhaisal, Kutwal and Dhawli. Thus, according to Defendant Plaintiff was not at all in exclusive possession of the road in question and as such he was not entitled to claim any injunction particularly when all the villagers were having right to use the said road.