AHAMAD HABIB ABASHA Vs. ZILLA PARISHAD

JUDGEMENT

(1.) Present appeal has been filed by the original defendants. Present respondent is the original plaintiff who had filed Regular Civil Suit No. 33 of 2006 before learned Civil Judge (Junior Division), Purna, District Parbhani, for perpetual injunction. Plaintiff had come with a case, that it is a body corporate established under the Act. Various schools are run under Zilla Parishad at different places. Land bearing Survey No.14 situated at town Purna was the Government property. Portion admeasuring 02 Hectares 02 R was given out of the said survey number to the plaintiff for running a school. Plaintiff constructed school building in 2200 sq. feet area consisting of RCC building and the remaining space was kept open for using it as play ground and other activities of the school. The portion that was allotted to the plaintiff was given Survey No.14/9 and the school is being run in that place since last more than 50 years. Out of the said survey number, certain portions have been allotted to Boudha Vihar, Boudha Vidyarthi Gruha and Scheduled Caste hostel which is on the eastern side of the Zilla Parishad school. After deducting the said area, the plaintiff is actually possessing 03 Acres 35 Gunthas land. The boundaries of the same have been given in the plaint. It is stated that a specific municipal council house property number was given to the suit property. The Zilla Parishad has covered the area by fencing it which is abutting Purna Road. It is stated that the defendants no.01 and 02 are doing business of plotting as well as development of sites. The suit property is situated in the heart of Purna town and with ill intention to grab the open space adjacent to Purna-Nanded road out of the suit property, they are exposing the property belonging to one Ahemad Habib Abasha and defendant no.02 is holding power of attorney for him. They are claiming right and interest in the suit property. Defendants went to suit property on 08-06-2006 and prepared plots by marking the land. They were obstructed by the headmaster. There was temporary stoppage by defendants. However, again they came to suit property on 16-06-2006 with proposed purchasers. Therefore, the plaintiffs have apprehended obstruction to their possession over suit property and, therefore, suit for perpetual injunction has been filed.

(2.) Defendants no.01 and 02 resisted the suit by filing written statement and defendants no.03 and 04 adopted the said written statement by filing Pursis. Defendants no.01 and 02 have filed the counter claim in their written statement in respect of land Survey No. 14/1 to the extent of 68 R. They have denied that plaintiff possessed an area admeasuring 03 Acres 35 Gunthas. It is stated that they are care takers and, therefore, suit cannot be filed against them. It is also stated that the area and boundaries of Survey No.14/9 given by the plaintiff in the plaint is wrong. It is stated that the plaintiff possessed only 84 R land which is covered by fencing. The boundaries of the land which is in occupation of plaintiff has been given in the written statement. Defendants contend that one Habib Abasha was the owner and possessor of land Survey No. 14/1 admeasuring 85 R. Out of that, Municipal Council, Purna, acquired 16 R during the lifetime of Habib Abasha. Habib Abasha expired in 1985 and, therefore, the land came to be mutated in the name of his son Ahemad Habib vide mutation entry no.1996. Ahemad Habib had given application to the municipal council to put wire fencing to his property on 02-06-1997. It is also stated that Joint Director of Land Record, Aurangabad, had passed an order on 18-05-1998 and cancelled the measurement dated 30-12-1990 of the suit property and it was directed that Taluka Inspector of Land Record should measure the land afresh. Accordingly, measurement was carried out on 29-08-2000 in respect of lands Survey No.14/1 and 14/9. The boundaries have been fixed. It is also contended that Survey No.14/1, area of 68 R is divided into two portions because of the road passing in between. Ahemad Habib has given power of attorney to defendants no.01 and 02 and by virtue of that document, they possess and manage the said land. They have, therefore, prayed injunction against plaintiff in respect of 68 R out of Survey No. 14/1.

(3.) The plaintiff filed written statement to the counter claim and denied all those contentions raised by way of counter claim. It is stated that measurement dated 29-08-2000 was false and fabricated. It is also stated that one Uttam Dajisaheb Kadam had filed Regular Civil Suit No. 33 of 2003 as a power of attorney holder of Ahemad Habib against one Sayyed Noor in respect of the suit property. However, the said suit was dismissed on 25-07-2005 and, therefore, the counter claim is hit by principles of res judicata. It is stated that no cause of action arose for the defendants to file counter claim.