The Bombay High Court dismissed a writ petition filed under Articles 226 and 227 of the Constitution of India, challenging the legality, propriety, and correctness of the order dated 4th October 2021 passed by Civil Judge in Regular Civil Suit, which was confirmed by District Judge vide order dated 19th August 2022 passed in Miscellaneous Civil Appeal.
The Court observed that though in the case in hand, there is a recital in the registered sale deed relied on by the plaintiff that possession of the suit land was handed over to the plaintiff, considering the affidavits of the adjoining land owners, filed on record, the Court is of the prima facie view that the plaintiff has failed to prove his possession over the suit property.
Brief Facts:
The petitioner filed Regular Civil Suit for an injunction against the respondents – defendants. Along with the suit, application Exhibit-5 was filed. The defendants appeared and opposed the suit as well as the temporary injunction application. To prove the possession, both parties filed affidavits. The plaintiff filed affidavits of his close relatives, who have stated that the plaintiff is in possession of the suit land and the defendant has filed affidavits of the adjoining land owners. Under the directions of the Trial Court, the Talathi visited the spot and ascertained the position, and submitted a report that defendant No.1 is in possession of the suit land.
The Trial Court, after hearing the parties, rejected the application filed by the petitioner. The order of the Trial Court was confirmed by the Appellate Court vide the order passed below Exhibit-18 in Miscellaneous Civil Appeal. Hence, the present petition.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner submitted that the Petitioner is in possession of the suit property on the basis of the sale deed dated 16th April 2008, executed by defendant–respondent No.1 in his favor. On the basis of said registered sale deed, the name of the petitioner is recorded in the revenue record, vide Mutation Entry No. 484.
Contentions of the Respondent:
The Learned Counsel for the Respondent admitted the execution of the said sale deed under compelling circumstances, which are stated in the written statement. It was claimed that no consideration was paid and the sale deed was executed by way of security and it was not out and out sale.
Observations of the Court:
The Court noted that in view of the peculiar facts and circumstances of the case and the affidavits placed on record, one of which is of the attesting witness to the sale deed, who has stated on oath that no consideration was passed at the time of execution of the registered sale deed, both the Courts were justified in refusing relief in favor of the plaintiff.
The court observed that though in the case in hand, there is a recital in the registered sale deed relied on by the plaintiff that possession of the suit land was handed over to the plaintiff, considering the affidavits of the adjoining land owners, filed on record, the Court is of the prima facie view that the plaintiff has failed to prove his possession over the suit property. Therefore, the citation relied upon by the learned advocate for the petitioner is of no help to the petitioner.
The decision of the Court:
The Bombay High Court, dismissing the petition, held that both the courts recorded concurrent findings of facts, which are not liable to be interfered with in the extraordinary writ jurisdiction of this Court.
Case Title: Arun Narayan Shinde vs Prakash Dnyandevrao Shinde and Anr.
Coram: Hon’ble Justice Nitin B. Suryawanshi
Case no.: WRIT PETITION NO.13037 OF 2022
Advocate for the Petitioner: Mr. P. R. Katneshwakar
Advocate for the Respondents: Mr. A. N. Sabnis, and Mr. N. G. Kale
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