1 wp2458.14
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.2458 OF 2014
1) Keshav s/o Tukaram Kshirsagar,
Aged about 42 years,
Occupation - Agriculturist,
2) Smt. Vaishali w/o Keshav Kshirsagar,
Aged about 37 years,
Occupation - Household.
Both petitioners Nos. 1 and 2
R/o Village Nimba, Taluka-Murtizapur,
District Akola. .... PETITIONERS
VERSUS
1) Mahendra s/o Nilkantrao Deshmukh,
Aged about 42 years,
Occupation - Agriculturist,
R/o Village Nimba, Taluka Murtizapur,
District Akola.
2) Ramesh s/o Daulatrao Gavhale,
Aged about 64 years, |(Deleted as per
Occupation - Agriculturist, |Court's order dt.
R/o Village Pinjar, Taluka-Barshitakli, |02-09-2014)
District Akola, at present residing at
VMV Road, Amravati, Taluka-District
Amravati. .... RESPONDENTS
______________________________________________________________
Shri H.R. Gadhia, Advocate for the petitioners,
Shri S.D. Chande, Advocate for the respondent No.1.
______________________________________________________________
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2 wp2458.14
CORAM : Z.A. HAQ, J.
DATED : 6 JUNE, 2016 th ORAL JUDGMENT :
1. Heard Shri H.R. Gadhia, Advocate for the petitioners/ original defendants and Shri S.D. Chande, Advocate for the respondent No.1/plaintiff.
2. Rule. Rule made returnable forthwith.
3. The petitioners have challenged the order and judgment passed by the trial Court and District Court concurrently upholding the claim of the respondent No.1/plaintiff for temporary injunction restraining the petitioners/defendants from interfering with the possession of the respondent No.1 over the suit field till the decision of the civil suit.
4. The learned Advocate for the petitioners has submitted that the mother of the respondent No.1 sold the suit field to Maniklal and Diwakar by registered sale-deed executed in 2004, Maniklal and Diwakar sold the suit field to respondent No.2 and the respondent No.2 sold the suit field to the petitioners by two separate sale-deeds ::: Uploaded on - 13/06/2016 ::: Downloaded on - 30/07/2016 04:27:16 ::: 3 wp2458.14 executed on 14-02-2011. It is submitted that the respondent No.1 has no right, title or interest over the suit field and therefore, he cannot seek temporary injunction to oust the petitioners who are the rightful owners of the suit field. To support the submission, reliance is placed on the judgment given by the Hon'ble Supreme Court in the case of Premji Ratansey Shah vs. Union of India reported in 1994(5) SCC
547.
5. After going through the documents placed on the record and the impugned order and the impugned judgment, I find that the subordinate Courts have properly appreciated the material placed on the record. In paragraph No.22 of the judgment passed by the District Court, the learned Judge has considered the mutation entries in 7/12 extract, the fact that the names of the petitioners are mutated in column No.7 and that the name of the respondent No.1 continues in column No.12 and after considering these entries, the learned District Judge has rightly recorded that the respondent No.1 has prima-facie established that he is in possession of the suit field. The respondent No.1 claims to be owner of the suit field by inheritance. Though the claim of ownership made by the respondent No.1 is disputed by the petitioners, this issue will have to be decided by the trial Court on ::: Uploaded on - 13/06/2016 ::: Downloaded on - 30/07/2016 04:27:16 ::: 4 wp2458.14 merits. The judgment given in the case of Premji Ratansey Shah does not assist the petitioners as at this stage it cannot be said that the respondent No.1 is a trespasser or a person who has acquired possession unlawfully.
6. I do not find any patent illegality or perversity in the impugned order and the impugned judgment. The petition is dismissed. In the circumstances, the parties to bear their own costs.
As the civil suit is of 2011, the trial Court is requested to dispose the civil suit till 15-01-2017.
JUDGE pma ::: Uploaded on - 13/06/2016 ::: Downloaded on - 30/07/2016 04:27:16 :::