Jairaj Devidas vs Hirabai Shinwar Jadhav
2011 Latest Caselaw 41 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                           
                        CIVIL APPELLATE JURISDICTION




                                                   
                      CIVIL WRIT PETITION NO. 4255 OF 2011

    Jairaj Devidas
    and others                               ...            Petitioners




                                                  
                 Versus

    Hirabai Shinwar Jadhav




                                          
    and others                               ...            Respondents
                            
    Mr. A. Y. Sakhare, Senior Advocate with Mr. Sudhir Prabhu for the
    Petitioners
    Mr. A. A. Kumbhakoni, with Mr.Ramchandra Yadav for Respondent Nos.
                           
    1(1) to 1(3) and 3 to 20
    Mr. Owen Menezes i/by Mr. R. S. Tripathi for Respondent Nos. 21 and 22
           

                                    CORAM: R. M. SAVANT, J.

DATED : 11th November, 2011 ORAL ORDER:

1. Rule made returnable forthwith. By consent, the Petition is taken

up for hearing.

2. The above Petition takes exception to the order dated 9th March,

2011 passed by the learned Ad-hoc District Judge-1, Thane by which order

the Appeal being Misc. Civil Appeal No. 142 of 2010, filed by Respondent

Nos. 1 to 20 herein came to be allowed and resultantly, the order dated

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31st July, 2010 passed by the 7th Joint Civil Judge, Junior Division, Thane

below Exh.5 in Regular Civil Suit No. 144 of 2010, granting temporary

injunction, is quashed and set aside.

3. The controversy in question relates to the land bearing Survey No.

10/1 at village Mira, District Thane to the extent of 6350 square meters.

The genesis of the controversy brought to this Court lies in Regular Civil

Suit No. 144 of 2010 which has been filed by the Petitioners herein, inter

alia, for the following reliefs:

a) to be declared that the Plaintiffs are the Owners of the Suit

Property and Def Nos. 1 to 24 have no right over the same.

b) The Def Nos. 1 to 25 may be directed to hand over vacant possession of the Suit property by removing the piling work done over the Suit property to the Plaintiffs.

c) The Defendant Nos. 1 to 24 may be restrained by an order of permanent prohibitory injunction from carrying out the work of construction, creating third party interest in the proposed construction or over Suit property.

d) Interim injunction in terms of prayer clause 'c' above.

e) Cost of the Suit may be awarded to the Plaintiff.

f) Any other just and proper order may be passed in favour of the Plaintiffs.

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4. In the said Suit, an application Exh.5 for temporary injunction

restraining Defendant Nos. 1 to 24 from carrying out construction and

creating third party rights in respect of the Suit property came to be filed by

the Plaintiffs-Petitioners. It was the case of the Plaintiffs-Petitioners herein,

that Respondent Nos. 21 to 24 who claim through Respondent Nos. 1 to 20

cannot have any such right since Respondent Nos. 1 to 20 themselves have

no right qua the property in question. Reliance was placed by the

Plaintiffs on a copy of the order dated 29th May, 1963 passed by the

Agricultural Land Tribunal by which the application under section 32 (G)

of the Bombay Tenancy and Agricultural Lands Act , 1948, filed by the

protected tenant- one Somwarya Kolya Jadhav, came to be rejected. The

Plaintiffs also placed reliance on various orders passed by the revenue

authorities whereby the mutation entries, effected in favour of Respondent

Nos. 1 to 20 came to be set aside. It is significant to note that the

averments in the plaint, in turn, disclose that the cause of action for filing

of the said Suit arose some time in the year 2006 i.e. on the mutation entry

being effected in favour of Defendant Nos. 21 to 24. The said Exh.5-

application for temporary injunction- was replied by Defendant Nos. 21 to

24, by filing their written statement, in the said Suit which was their reply

to the application for temporary injunction also. The Defendant Nos. 21 to

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24, have referred to the agreement dated 6th February, 2006 in their

favour which was executed by Respondent Nos. 1 to 20. In so far as the

said documents dated 29th May, 1963 is concerned, the said Defendants

have, in turn, stated that no such authenticated record of the said

proceedings was filed on record and claim was based on a uncertified copy

and that too having no signature of the concerned authority. The 7th Joint

Civil Judge, Junior Division, Thane, by his order dated 31st July, 2010,

allowed the said application Exh.5 for temporary injunction.

5. The gist of the reasonings of the learned Judge while allowing the

said application Exh. 5 was that Defendant Nos. 1 to 20 could not have

any right qua the property in question in view of the said order dated 29th

May, 1963 passed by the Revenue Tribunal by which order the application

of the protected tenant under Section 32(G) of the Bombay Tenancy and

Agricultural Lands Act, 1948 came to be rejected. The learned Judge also

relied upon the orders of the revenue authorities setting aside the mutation

entries, which were made in favour of Respondent Nos. 1 to 20 herein,

whilst allowing the said application Exh.5.

6. Aggrieved by the said order dated 31st July, 2010, passed by the 7th

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Joint Civil Judge, Junior Division, Thane allowing the said application

Exh.5, the Respondent Nos. 1 to 24 i.e. Defendants to the said Suit filed

Misc. Civil Appeal No. 142 of 2010. The learned Ad-hoc District Judge-1,

Thane (the First Appellate Court), by the impugned order dated 9th March,

2011, set aside the said order dated 31st July, 2010. The First Appellate

Court, whilst allowing the said Appeal, has, inter alia, held that the reliance

placed by the trial Court on the order dated 29th May, 1963 was misplaced

in view of the fact that no certified copy of the said order was placed on

record by the Plaintiffs and what was placed on record was only a copy of

the said order. The First Appellate Court was of the view that the trial

Court, whilst granting application Exh.5 for temporary injunction, has not

considered the material on record in its proper perspective. The First

Appellate Court, inter alia, held that the Plaintiffs have not come to the

Court with clean hands, inasmuch as the fact that the earlier Suit filed by

the Plaintiffs being Regular Civil Suit No. 530 of 2004 claiming the same

relief as claimed in the present Suit has not been disclosed. The First

Appellate Court observed that the parties have sought to place reliance on

the orders passed by the Revenue Authorities which were in favour of

either of the parties, and applying the principle that the revenue entries

only have presumptive value and do not decide the title of the property in

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question. The First Appellate Court was of the view that much reliance

could not be placed on the setting aside of the revenue entries. In the said

context, the trial Court made an observation that the title of the property

need not be considered at the stage of consideration application Exh.5 for

temporary injunction. The First Appellate Court also took into consideration

the fact that a certificate under section 32(M) of the B.T.A.L. Act was

granted in favour of heirs of original protected tenant i.e. Defendants on

31st October, 2002. That certificate still holds good as no steps have been

taken for setting aside the said certificate. In so far as the possession is

concerned, the Appellate Court recorded a finding that since the plaintiffs

have claimed possession, it implies that they have been dispossessed,

however, the date of dispossession has not been mentioned in the Suit.

The First Appellate Court, therefore, held that Defendant Nos. 21 to 24

were in possession of the property in question.

7. In so far as the balance of convenience is concerned, the First

Appellate Court, taking into consideration various permissions obtained by

Defendant Nos. 21 to 24 from the various authorities and considering the

amounts expended by them towards development, has recorded a finding

that the balance of convenience would also be in favour of Defendant Nos.

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21 to 24. In the circumstances as indicated above, the First Appellate Court

has set aside the order dated 31st July, 2010 passed by the 7th Joint Civil

Judge, junior Division, Thane granting temporary injunction.

8. Learned Senior Counsel Mr. Sakhare, appearing for the Petitioners,

submits that in the teeth of the order dated 29th May, 1963 of the

Agricultural Lands Tribunal, and setting aside of the mutation entries in

favour of Respondent Nos. 1 to 20, the Respondent Nos. 1 to 20 could not

create any right in favour of the said Respondent Nos. 21 to 24. The

learned senior counsel placed reliance on the orders of the revenue

authorities, a compilation of which was submitted to this Court and

contends that the First Appellate Court has totally grossed sight over the

said material, inasmuch as the setting aside of the mutation entires

confirmed right upto the Appellate authority and also this Court thereafter,

has not been taken into consideration by the First Appellate Court.

9. Per contra, it is submitted by Mr. Menezes, the learned counsel,

appearing for Respondent Nos. 21 and 22, that the Suit itself is not

maintainable as, by formulating the prayers in the form in which they are,

the Plaintiffs, in fact, are seeking setting aside the development agreement

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dated 6th February, 2006 executed by the Respondent Nos 1 to 20 in favour

of the Respondent Nos. 21 and 22. In so far as the order dated 29th May,

1963 is concerned, the learned counsel Menezes submitted that no certified

copy of the said order was produced and what was produced before the

Court was only an ordinary copy of the order which fact has been reflected

in the order passed by the First Appellate Court. The learned Counsel,

relying upon the text of the Probate Petitions being Petition Nos. 571 of

1970 and 728 of 1970, would contend that the land in question which is

the subject matter of the Suit has not been shown to be a part of property in

respect of the original owner in respect of whom the probate petitions were

filed. Mr. Menezes also placed reliance on the document i.e. Khateutara

in Form No. 8A wherein the said land is not shown as the holding of the

plaintiffs. Mr. Menezes also demonstrated as to how the prejudice would

be caused to the said respondents if interim relief is granted, in view of

the permissions that have been obtained by the said respondents from

various authorities as also the amount that has been expended by them.

10. On behalf of Respondent Nos. 1 to 20, learned counsel Mr.

Kumbkoni supported the submissions made by Mr. Menezes and

submitted that the document in question i.e. order dated 29th May, 1963 is

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a highly suspicious document. The learned senior counsel drew my

attention to the letter dated 13th February, 2010 of the Tahsildar by which

letter the Tahsildar has informed one K. N. Joshi who is partner of

Respondent no. 21, that records pertaining to the said proceedings in the

order dated 29.5.1963 are not available in the office.

11. Having heard learned counsel for the parties and having given my

anxious consideration to the rival contentions, in my view, there is no merit

in the above Petition. The First Appellate Court considered the material on

record and has rightly set aside the order dated 31st July, 2010 passed by

the 7th Joint Civil Judge, Junior Division, Thane below Exh.5 in Regular

Civil Suit No.144 of 2010. Since much store has been laid by the

Petitioners/Plaintiffs on the order dated 29th May, 1963, purportedly passed

in the 32(G) proceedings, it would be gainful to refer to and rely upon the

text of said order. Text of the said order discloses a statement which has

been recorded namely of the said Somawarya who claimed to be the

protected tenant the said statement is to the effect, that the land was

never cultivated by him or by his father and the entry in revenue record is

incorrect. It defies logic how such a statement could be made by a person

claiming to be a protected tenant who himself has applied under section

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32(G). The statement itself raises doubt and suspicion as regards the said

order dated 29th May, 1963 is concerned. Though the trial Court has

recorded a finding that a copy of the said order was produced, the First

Appellate Court has held that the said order could not be relied upon as no

certified copy was produced by the Plaintiffs. In my view, the observation

has been rightly made by the First Appellate Court as it appears that only a

certified copy was produced without any signature. In my view in the light

of the contents of the said document and the letter of the Tahsildar dated

13th February, 2010, the said document could not be relied upon at the prima

facie stage.

12. It is well settled that for the grant of injunction which is a

equitable relief, a party who claims such relief has to come to the Court

with clean hands and that there should be no suppression of facts. In the

instant case, it is significant to note that the Petitioners/ Plaintiffs had

already filed Civil Suit No.530 of 2004 admittedly for the same relief as

prayed in the present Suit and for some inexplicable reason, application

for injunction has not been filed in the said Suit and the said Suit was

pending, The instant suit being Regular Civil Suit No. 144 of 2010 has

been filed without disclosing the fact that earlier Suit No. 530 of 2004 for

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the same relief is yet pending. The First Appellate Court, in the said

factual position, has rightly commented adversely against the conduct of the

Plaintiffs, in qua their entitlement to the grant of the said equitable relief.

13. In so far as the orders passed by the revenue authorities are

concerned, no doubt the orders passed by the authorities effecting mutation

entries in favour of Defendant nos 1 to 20 were set aside. However, in

some cases, the matter was remanded back to the revenue authorities for

de-novo consideration. As rightly observed by the First Appellate Court,

the revenue entries do not decide the title to the property and are only of

presumptive value. However, the fact remains that the certificate under

section 32(M) has been issued in favour of the heirs of the protected tenant

on 31st October, 2002 and the record discloses that the said certificate has

not been challenged and therefore holds the field as on date. The contention

of the learned senior counsel for the Petitioners that the said certificate

under section 32 (M) cannot stand in the eyes of law in view of the order

dated 29th May, 1963 passed on the application under section 32(G) cannot

be accepted, in view of what has been stated hereinabove in respect of the

said order dated 29th May, 1963. The First Appellate Court was, therefore,

right in my view in placing reliance on the said 32(M) certificate.

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14. It would be relevant to note that the averments in the plaint

discloses that the cause for filing the Suit has arisen in the year 2006. It is

pertinent to note that by way of prayer clause (b), the Plaintiffs have

sought a relief that the Defendants 1 to 25 may be directed to hand over the

vacant possession by removing the piling work done over the said

property. What is implied in this prayer is acceptance of the fact by the

Plaintiffs that they are aware that Respondent Nos. 21 and 22 are carrying

out the work pursuant to some agreement. Knowledge of the said

development agreement dated 6th February, 2006 would, therefore, have to

be attributed to the Plaintiffs/Petitioners. The Plaintiffs sought the said said

relief by prayer clause (b) without seeking the setting aside of the said

development agreement dated 6th February, 2006 in favour of Defendants

21 and 22. This is obviously done with a view to bring the Suit within

limitation as the agreement dated 6th February 2006 could not have been

challenged by filing a suit in the year 2010 as by that time, the period of

limitation was over, and therefore, it appears that by skillful drafting no

such prayer/reference has been made in the Suit. Learned counsel Mr.

Menezes, therefore, contends that the Suit itself is not maintainable.

However, the question as to maintainability of the suit can be considered at

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the appropriate time.

15. In so far as the probate petitions are concerned though the said

material was not before the Courts below the fact of the matter is that in the

probate petitions the property which is the subject matter of the suit is not

the property shown of the original owner through whom the plaintiffs claim.

The mention of the suit property also does not find place in form 8-A which

is revenue record. The learned trial Court was therefore, right in recording

a finding by relying upon the said form 8-A.

16. Having considered the impugned order dated 9th March,2011

and in the light of the above discussion, no case for interdiction in the writ

jurisdiction of this Court under Article 227 of the Constitution is made out.

Writ Petition is accordingly dismissed.

17. However, it is made clear that the respondent Nos 1 to 22 may

proceed to develop the property in question. No further third party rights

from today would be created by them. The third party rights already

created would be subject to the result of the said Regular Civil Suit no.144

of 2010.

18. With the aforesaid observations, the petition is dismissed. Rule

discharged.

(R. M. SAVANT, J.)