RIYAJ KHAA Vs. RAVINDRA KAMBALE

JUDGEMENT

(1.) The appellants/defendant Nos.1 to 5 have filed the present miscellaneous appeal under Order 43 Rule 1 of the CPC being aggrieved by the order dated 19.01.2019 whereby the application filed under Order 8 Rule 6 (C) of the CPC filed by the plaintiffs has been allowed and the counter claim filed by the appellants has been excluded with the direction to file fresh suit.

(2.) The plaintiff filed the suit for declaration and permanent injunction against the present appellants. According to the plaintiffs Majdoor Panchayat Gruh Nirman Sehkari Samiti Maryadit, Indore purchased the land of various survey No.86, 87, 92/1, 92/2, 92/3, 92/4, 92/5, 92/6, 94, 95, 96, 97/1, 97/2, 97/3, 98, 99, 100, 104, 105, 106 and 107 having total area 68.94 acre of Gram Khajrana from various land owners and thereafter developed the Pushp Vihar Colony over the said land. The society obtained a diversion order dated 13.06.1988 and also obtained necessary permission before development of the said land . The land bearing Survey No.92 was belonging to the Society on which also the Pushp Vihar colony has been developed. The society has developed 5 plots namely C-1 to C-5 over the land Survey No. 92. According to the plaintiffs the Plot No.C-3 and C-4 are belonging to them and they are in the possession also. In the year 2004, the plaintiffs have constructed a boundary wall and one room. In para 7 of the plaint they have alleged that the defendant Nos.1 to 5 are trying to take possession of their Plot No.C-3 and C-4 whereas they are owner of the land bearing Survey No.91/2 (area 0.243 hectare). On 07.01.2010 they tried to dispossess the plaintiffs and matter was reported to the Police and thereafter SDM initiated the proceedings under Section 145 of the Cr.P.C. Vide order dated 01.04.2010 receiver has been appointed by the SDO.

(3.) The plaintiffs have filed the suit claiming the relief of declaration that they are owner and occupier of Plot No.C- 3 and C-4 of Survey No.92 and the defendants Nos.1 to 5 be restrained to disposes them. They are also seeking that the proceedings under Section 145 are not binding on them. By way of amendment the plaintiff have also claimed relief that the possession of C-3 and C-4 have been taken by the defendants, therefore, they be directed to hand over the possession to the plaintiffs. The relief claimed in the plaint is reproduced below: