Bombay High Court
All Residents Of Tandulwadi vs 4 Nanda Baburao Vibhute on 22 November, 2011
Bench: R. M. Savant
1 WP-4586.11.sxw
lgc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4586 OF 2011
1 Gorakh Mahadev Survase ]
2 Duryodhan Mahadev Survase ]
3 Namdeo Jagannath Survase ]
4 Changdeo Jagannath Survase ]
5 Balu Jagannath Survase ]
6 Eknath Mahadev Survase ]
]
All Adults, Occ.Agriculturists ]
All residents of Tandulwadi, ].... Petitioners
Tal.Malshiras, District Solapur.
ig ]
versus
Narayan Balu Dhombe ]
since deceased through his legal heirs ]
]
1 Maruti Narayan Dombe ]
2 Bhimrao Narayan Dombe ]
3 Laxmi Narayan Dombe ]
4 Nanda Baburao Vibhute ]
5 Vandana Chandrashekhar Khot ]
6 Padmini S Jathar ]
7 Padmini Sunita Gote ]
]
Respondent Nos.1 to 4 are residing ]
at Tawashi, Taluka Pandharpur, ]
District Solapur. ]
Respondent No.5 residing at Wanewadi ]
Taluka Karad, District Satara ]
Respondent No.6 residing at Akluj ]
Taluka Malshiras, District Solapur ]
Respondent No.7 residing at Keskarwadi ].... Respondents.
Taluka Pandharpur, District Solapur. ]
Mr.Prabhakar Jadhav for the Petitioners.
Mr.Vinod Y Jadhav for the Defendant Nos.1 to 4 and 6.
CORAM : R M SAVANT, J.
DATE : 22nd November 2011
2 WP-4586.11.sxw
ORAL JUDGMENT :
1 Rule, by consent of the parties made returnable forthwith and
heard.
2 The above Petition takes exception to the order dated 23/2/2011
passed by the learned District Judge-1, Malshiras by which order Misc. Civil
Appeal No.5 of 2010 filed by the Respondents herein came to be allowed, and
resultantly the order dated 18/1/2010 passed by the learned 3rd Joint Civil
Judge, Junior Division, Malshiras in Regular Civil Suit No.549 of 2008 granting
temporary injunction to the Petitioners came to be set aside.
3 Shorn of unnecessary details, a few facts necessary to be cited for
the adjudication of the above Petition can be stated thus :-
The Respondents herein are the original Plaintiffs. They filed a suit
for permanent injunction against the Petitioners/Original Defendants from
obstructing and illegally encroaching upon the suit land being Gat No.437
admeasuring 3 H. 64 Ares, Pot Kharaba 8 acres, situated at Mouje Tandulwadi,
Taluka Malshiras, District Solapur. It appears that the said land was the part of
the lands owned by the father of the Petitioners. It appears that the said lands
were partitioned and whilst partitioning the lands, the name of the Plaintiff
came to be recorded in respect of the land in question on 26/6/1967 in stead
3 WP-4586.11.sxw
of the name of the brother of the Petitioner one Eknath Mahadev Survase, and
Mutation Entry No.456 accordingly came to be effected. It is the case of the
Petitioners that taking disadvantage of the same, the Plaintiff filed the said
Regular Civil Suit No.549 of 2008. In the said suit, an Application Exhibit-5
came to be filed for temporary injunction. The Petitioners, who were the
Defendants, filed their Counter Claim and also filed an application for
temporary injunction. It was the case of the Petitioners that they were in
continuous occupation and possession of the said land. It would be relevant to
note at this stage that the plaint is conspicuously silent as to how the Plaintiff
has come in possession of the said land.
4 Per contra, it is the case of the Defendants i.e. the Petitioners
herein that the entry made in favour of one Narayan Balu Dombe was hollow
as it has no basis and that he was not in possession of the suit property. It was
further the case of the Defendants that the brother of the Plaintiff Dattu Balu
Dombe had got mutation in his name cancelled as per the assurance given by
him to the Defendants i.e. the Petitioners. The said Application Exhibit-5 was
rejected by the trial Court by the order dated 18/1/2010, and the Application
for temporary injunction in the Counter Claim filed by the Defendants came to
be allowed by the said order, and resultantly, the Plaintiffs were restrained
from disturbing the possession of the Defendants.
4 WP-4586.11.sxw
5 Aggrieved by the said order dated 18/1/2010, the Plaintiffs filed
an Appeal. The Appellate Court on the basis that the Defendants did not take
objection at the time when the mutation entry in respect of the brother of the
Plaintiff was deleted and also did not take exception to the entry made in the
revenue records in favour of the Plaintiff for the last so many years, allowed
the said appeal, and resultantly, the injunction operating in favour of the
Defendants was set aside.
In so far as possession is concerned, though a finding has been
recorded by the Appellate Court, the said finding is not backed by any reason
or any material which has been adverted to by the Appellate Court to record
such a finding.
7 In the course of the hearing of the present Petition also, though
called upon to do so, the parties were not in a position to produce any material
to substantiate their case of being in possession in respect of the suit land. The
First Appellate Court has merely gone on the basis of two circumstances
mentioned herein above viz. that the Defendants have not objected at the time
when the mutation entry in favour of the brother of the Plaintiff was deleted,
and also have not taken objection for number of years though the name of the
Plaintiff Narayan was appearing in the revenue record, granted the injunction
in favour of the Defendants. Though it is trite that the revenue record has
presumptive value, some other corroborative material is required to sustain a
5 WP-4586.11.sxw
case of possession. However in the instant case that material is woefully
lacking.
8 On facts as indicated upon the parties have not been able to
substantiate their case of possession, which is the most vital aspect in so far as
the grant of injunction is concerned. Hence the impugned order dated
23/2/2011 would have to be set aside and is accordingly set aside, and on
such setting aside it would be just and proper to exercise powers under Rule 1
of Order 40 of the Code of Civil Procedure by keeping the property custodia
legis, pending the suit so that the interest of both the parties would stand
protected till such time as the said suit is adjudicated. The Nazir of the District
Court, Malshiras is appointed as a Receiver of the suit property with all powers
under Rule 1 of Order 40 of the Code of Civil Procedure. The Nazir to take
possession of the suit property from whosoever is in possession. The Nazir may
invite the bids from the two parties i.e. the Plaintiffs and the Defendants for
cultivating the suit property and put the highest bidder in possession of the
same, pending the suit on a yearly basis. The hearing of the said suit is
expedited. Rule is accordingly made absolute to the said extent with the parties
to bear their respective costs. The Petition is accordingly disposed of.
[R.M.SAVANT, J]
