Anandi Pandurang Gholape And ANR v. Bapu Bhagoji Buchade

{1}

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

CIRCUIT BENCH AT KOLHAPUR CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 11068 OF 2025 Anandi Pandurang Gholape And Another

VERSUS

Bapu Bhagoji Buchade ...

Mr. K.K. Sasavade a/w Mr. Rajavardhan Sasavade, Advocate for Petitioners Mr. Swaroop Karade a/w Mr. Harshit, Advocate for Respondent .......

CORAM : NITIN B. SURYAWANSHI, J.

DATE : 17th FEBRUARY, 2026 ORDER :

1.

By this petition filed under Article 226 and 227 of the Constitution of India, petitioners take exception to the order dated 19.07.2025 passed by learned District Judge-2, Kolhapur in Misc. Civil Appeal No. 102 of 2025, thereby allowing the appeal filed by the respondent and setting aside the order passed below Exhibit-5 in Regular Civil Suit No. 482 of 2025.

2.

Respondent/original plaintiff filed suit for injunction. It is the case of the respondent that property bearing C.T.S. No. 175 area 111.4 Sq.mtr., situated at Varange, Tal. Karveer, Dist. Kolhapur was Government property and Government had allotted plots to persons

{2} whose properties were situated in flood affected area. Plot No. 91 area 24 ft. x 80 ft. was allotted to father of plaintiff namely Bhagoji Narasu Buchade on 21.08.1979 by accepting price of that plot. Its possession was handed over to father of plaintiff as owner by Sub Divisional officer, Karveer. At the time of City Survey of 1981, it was necessary to enter area of that plot as 222.80 Sq.mtr. but it was recorded as 111.40 Sq.mtr. incorrectly. In above property, in half portion, plaintiff has constructed house and half portion was open plot having one small shed. Said half portion having open plot, shed is suit property. 3.

It is further averred that said property of half portion which was vacant and having one shed was given to defendants by plaintiff on rent. However, defendants illegally started construction over said property and has dug pits. When plaintiff asked defendants not to construct illegally, they refused. Therefore, plaintiff filed complaint application to Superintendent of Police, Kolhapur, PSI Karveer and filed suit for grant of permanent injunction. By filing application at Exhibit5, plaintiff claimed relief of temporary injunction restraining defendants from constructing suit property.

4.

Defendants filed written statement and denied averments made in the plaint. According to them, plaintiff has no right in suit property and suit is not tenable in present form. Plaintiff cannot claim equitable

{3} relief as he has not come with clean hands. Plaintiff has showed property as C.T.S. No. 175, area 111.40 Sq.mtr, but after allotment of plot by Government, there were roads and then City Survey was prepared. Actual measurements were taken and then city survey record was prepared in 1981 to which plaintiff never objected. Defendants are constructing in their property and only to stop their construction suit is filed.

It is further contended that plaintiff has executed lease deed for a period of 999 years dated 25/10/2007 in favour of defendant No.1 in respect of half portion of C.T.S.No.175 and its area is 55.7 Sq.mtr. of which boundaries are given in para 5 of written statement. At the same time possession of said suit property was handed over by plaintiff to defendant No.1. Moreover plaintiff, his brother, sister and son executed notarized irrevocable power of attorney in favour of defendant No.1 at same time. Defendant No.1 is in possession of suit property on the basis of lease agreement. Though plaintiff agreed to sell suit property to him, due to technical reasons and as permission was not received from Government, sale deed was not executed. As per lease agreement defendant No.1 paid consideration amount of Rs.90,000/- to plaintiff and all these facts are suppressed by plaintiff. Though in para No.3 of plaint, suit property is described, plaintiff has purposefully concealed details of lease agreement and copy of the

{4} same is not filed on record by him. On the basis of lease agreement and as per its terms, defendants have every right to construct in the suit property and accordingly they started construction. Defendants will suffer irreparable loss if their construction is stopped. Plaintiff has no prima facie case and balance of convenience. 5.

Along with the suit application Exhibit-5 was filed by plaintiff, which was rejected by the Trial Court. Plaintiff has challenged the same by filing Misc. Civil Appeal No. 102 of 2025, which came to be allowed. Hence, the present petition.

6.

Heard learned advocate for the petitioners and learned advocate for the respondent. Perused the grounds raised in writ petition memo, annexures thereto and the citations relied upon by learned advocate for the petitioners.

7.

Record shows that ownership of the suit property of plaintiff is not disputed. It is the case of the plaintiff that it was given on rent to defendants and defendants have illegally started constructing in suit property without obtaining permission of competent authority. 8.

Learned advocate for the petitioners strenuously submits that the property was given to defendants on rent by plaintiff by executing lease deed for 999 years and defendants are in possession of the said

{5} property on the basis of said lease deed. According to defendants, amount of Rs. 90,000/- is also paid by defendants. Along with the lease deed irrevocable power of attorney was also executed. According to the defendants, these aspects are deliberately suppressed by the plaintiff in the plaint and therefore plaintiff has failed to make out prima facie case, balance of convenience and irreparable loss. 9.

Indisputably, the lease deed is not registered. It is settled legal position that unregistered agreement cannot prima facie establish interest of the party in the suit property.

10.

Learned advocate for the petitioner relied on Prakash Sahu vs. Saulal and Others, 2019 SCC OnLine SC 1905 to contend that unregistered document could be taken into consideration for collateral purposes. By relying on Lavasa Corporation Limited vs. Jitendra Jagdish Tulsiani and Another, 2018 SCC OnLine Bom 2074 it is contended that agreement of lease is in fact a agreement of sale and title of the document is of no relevance but the purport of the agreement needs to be taken into consideration. 11.

Taking into consideration the facts of the present case and the documents placed on record, the Appellate Court has taken a possible view, which this Court is not inclined to interfere with in the extra

{6} ordinary writ jurisdiction. Writ petition being devoid of merit is dismissed.

(NITIN B. SURYAWANSHI, J.)