Shri. Ramchandra Dagadulal ... vs Municipal Council
2013 Latest Caselaw 257 Bom

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          IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 
                     BENCH AT AURANGABAD




                                                               
               WRIT PETITION NO.8400 OF 2013 




                                       
     1.   Shri. Ramchandra Dagadulal Bangad,
          Age: 50 years, Occ: Business,

     2.   Shri. Laxmikant Dagadulal Bangad,




                                      
          Age: 48 years, Occ: Business,

     3.   Shri. Mukund Dagadulal Bangad,
          Age: 6 years, Occ: Business,




                           
          All Residing at Marwad Galli,
          Savarkar Chowk, Osmanabad.      ...PETITIONERS 
                 
            VERSUS             
                
     1.   Municipal Council,
          Osmanabad,
          Through its Chief Officer,
          Osmanabad.
      


     2.   The State of Maharashtra,
   



          Through Collector,
          Osmanabad.                      ...RESPONDENTS

                          ...





     Mr. Sanjay Natu, Advocate holding for
     Mr. T.M. Tandale, Advocate for petitioners.
     Mr. R.N. Dhorde, Senior Counsel i/b
     Mr. R.V. Naiknavare, Advocate for respondent No.1.
     Mr. P.P. More, A.G.P. for respondent No.2.       





                          ...
         
                              CORAM: S.S. SHINDE, J.

                             RESERVED ON  : 19/11/2013
                             PRONOUNCED ON: 03/12/2013
                                       




                                       ::: Downloaded on - 23/12/2013 20:31:59 :::
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     JUDGMENT :

. Rule. Rule made returnable forthwith.

With the consent of the parties, the petition is

taken up for final disposal.

2. This writ petition is filed challenging

the judgment and order dated 14/08/2012 passed

below Exhibit-5 in Regular Civil Suit No. 408 of

2012 by Joint Civil Judge, Senior Division,

Osmanabad which is confirmed by the Adhoc District

Judge-1, Osmanabad in Misc. Civil Appeal NO. 100

of 2012 by its judgment and order dated

23/09/2013.

3. The petitioners herein, are the original

plaintiffs. The plaintiffs who are brothers

inter-se have filed R.C.S. No. 408 of 2012 for

declaration that, they are the owners of the suit

properties described in Schedule 'A' to 'C' in

para-1 of the plaint by virtue of sale deed dated

04/02/1953. They have also sought for a

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declaration that, defendant No. 1 - Municipal

Council is a rank trespasser on the suit

properties described in Schedule 'B' & 'C' and

further declaration that, construction of building

of Shopping Malls on the said schedule 'B' & 'C'

properties are illegal and none of the defendants

have any right to own, occupy or possess the suit

properties. They have also prayed for a mandatory

injunction against defendant No.1 for removal of

encroachment on suit Schedule 'B' & 'C' properties

by demolishing building etc., and for handing over

vacant and peaceful possession of said two

properties. The plaintiffs have also prayed for a

perpetual prohibitory injunction against the

defendants restraining them from interfering with

or disturbing the possession of plaintiffs in the

suit schedule 'A' property and further from

creating third party interest in schedule 'B' &

'C' properties.

. Along with the suit, the plaintiffs have

also filed an application at Exhibit-5 for

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temporary injunction praying therein, for

restraining defendant No.1, his servants, agents

etc., from causing any sort of obstruction to

their possession in the suit schedule 'A' property

till final decision of the suit. The plaintiffs

have also prayed for a temporary injunction

restraining defendant No.1 from creating any third

party interest in the suit schedule 'B' & 'C'

properties.

4. It is the case of the petitioners that,

said application was heard and rejected by the

Joint Civil Judge, Senior Division, Osmanabad.

Being aggrieved thereby, the petitioners herein,

filed Misc. Civil Appeal No. 100 of 2012 which

came to be rejected by the Adhoc District Judge-1,

Osmanabad by its judgment and order on 23/09/2013.

Hence this writ petition.

5. Learned Counsel appearing for the

petitioners submits that, there is no proof of

acquisition of suit properties by defendant No.1

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under Section 88(f) of the Maharashtra Municipal

Councils, Nagar Panchayat and Industrial Township

Act, 1965 ( for short, "Act of 1965"). It is

further submitted that, the record in respect of

suit property does not indicate that, the

respondent Municipal Council, Osmanabad is owner

of the suit property. It is further submitted

that, the petitioners are having possession over

the suit property described in Schedule 'A' since

last 60 years and in case possession of the

petitioners is not protected till disposal of the

suit, it will cause irreparable loss to

petitioners. It is submitted that, Zumbarlal

Jagannath Bangad, grandfather of the petitioners,

purchased suit property in schedule 'A' under

unregistered sale deed dated 04/02/1953 and they

are claiming ownership and possession over the

suit property under unregistered sale deed dated

04/02/1953 and by way of will deed dated

17/08/1970. It is submitted that, the District

Court, Osmanabad in R.C.A. No. 64 of 2007,

restrained respondent No.1 to take possession of

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the Schedule 'A' property without following due

procedure of law under Section 88(f) and 100(a) of

the Act of 1965, still respondent No.1 failed to

prove that, it acquired suit properties under

recognized mode as contemplated under section

88(f) of the Act of 1965. It is submitted that,

title documents i.e., sale deed dated 04/02/1953

and will deed dated 17/08/1970 have been proved by

leading evidence as per Order 41 Rule 27 of the

Code of Civil Procedure in R.C.A. No. 64 of 2007

and respondent No.1 deliberately did not brought

to the notice of the High Court in Second Appeal

No. 368 of 2010, in respect of the observation

made by the appellate Court in R.C.A. No. 64 of

2007 and therefore, findings recorded by the

appellate Court in R.C.A. No.64 of 2007 attained

finality.

. Learned Counsel appearing for the

petitioners further submitted that, appellate

Court ought to have appreciated that, there is no

corresponding mutation in the revenue record

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evidencing that, respondent No. 2 has acquired the

suit properties by following due procedure of law

and therefore, respondent NO. 2 has no legal

right, authority either to claim ownership or to

transfer the suit properties in favour of

respondent No.1. It is submitted that, the Courts

below are influenced by the order passed by the

High Court in Writ Petition No.7949 of 2011 in

respect of observations made about title

documents. It is submitted that, in Letters Patent

Appeal No. 87 of 2012 which was filed by the

petitioners, Division Bench observed that,

observations made by the learned Single Judge will

not come in the way of the appellant if he desires

to file a declaratory suit and concerned Court

shall decide the same on its own merits. It is

further submitted that, the appellate Court erred

by holding that, sale deed dated 04/02/1953 and

will deed dated 17/08/1970 are unregistered and

therefore, does not inspire confidence. It is

submitted that, since the appellate Court erred in

holding that, since the order of Resident Deputy

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Collector has attained finality in view of the

order passed by this Court in W.P. No. 7949 of

2011, defendant No.1/respondent No.1 cannot be

prevented from evicting the petitioners from the

suit premises. It is further submitted that, prima

facie case was made out by the petitioners and

therefore, application at Exhibit-5 ought to have

been allowed by the trial Court. It is submitted

that, successor in title of late Subharao Nargonda

i.e., Shri. Jeevanrao Patil and others are also

claiming the possession of Survey No.240 from the

respondents, petitioners and others in R.C.S. No.

22 of 2008 filed before the Civil Judge, Junior

Division, Osmanabad, being the owners of the suit

property, respondent No.1 herein, has taken

defence in the said suit that, respondent No.1 is

owner by adverse possession. Therefore, the issue

of ownership is still not adjudicated by the

competent Court and hence, Misc. Civil Appeal No.

100 of 2012 ought to have been allowed by the

appellate Court by setting aside the order passed

below Exhibit-5 in R.C.S. No. 408 of 2012. Learned

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Counsel invited my attention to the pleadings in

the petition, grounds taken therein, contents of

the application Exhibit-5 which was filed before

the trial Court and also grounds taken in Misc.

Civil Appeal No. 100 of 2012 before the appellate

Court and submits that, the writ petition deserves

to be allowed.

6. Learned Counsel appearing for the

petitioners pressed into service exposition of the

Supreme Court in the case of Government of Andhra

Pradesh vs. Thummala Krishna Rao and another with

Govt. of A.P. vs Bandi Venkatarama and others and

Govt. of A.P. vs. Velluri Kesava Rao and another

reported in [1982] 3 SCR 500 and in particular

paragraphs-4,5,7 and 9 thereof, and submits that,

when the genuine dispute in respect of title of

the property has been raised, till establishing of

title to the property, the persons who are in

possession cannot be evicted summarily from the

suit property. It is submitted that, in the

present case also, the petitioners have filed suit

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for declaration of their title and ownership to

the suit property and respondent No.1 has not

established title/ownership and the petitioners

are in possession of the suit property since last

60 years, an application for temporary injunction

at Exhibit-5 deserves to be allowed.

. Learned Counsel for the petitioners

further invited my attention to the judgment of

the Supreme Court in the case of Surya Dev Rai vs.

Ram Chander Rai and others reported in 2003(5)

Supreme 390 and in particular paragraph-37

thereof, and submits that, in order to do complete

justice, the High Court can exercise its

supervisory jurisdiction. It is submitted that, in

the present case, the plaintiffs/petitioners have

claimed that, they are in possession of the suit

properties from last 60 years and therefore, this

Court may interfere in the impugned judgment and

order and grant the application for temporary

injunction filed by the petitioners.

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7. On behalf of respondent No.1, affidavit

in reply is filed by one Mr. Bharat s/o Ambrushi

Vidhate who is working as Municipal Engineer,

Municipal Council, Osmanabad in the present writ

petition. In paragraph-4 of the said reply, it is

stated that, in Nijam regime the Municipal

Council, known as Local Fund. The Local Fund

acquired the land Survey NOs. 2, 239 and 240 by

paying amount from the account of Local Fund in

the year 1349 Fasli. The letter given by the then

Tahsildar in Urdu Script clearly discloses that,

Local Fund i.e., present Municipal Council,

acquired the land for development of Shopping

Center and playground, copy of which is is placed

on record alongwith affidavit in reply at Exhibit-

R-1.

. In reply to paragraph-4(A) of the writ

petition, it is stated in the affidavit in reply

that, the contents in paragraph-4(a) of the writ

petition are not correct and same are denied. It

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are acquired by the Local Fund on 03/09/1345

Fasli. The Pahani Patrak of the year 1950-51 also

admeasuring 2 acre 32 gunthas and Survey No. 241

admeasuring 2 acre 2 gunthas are recorded in the

name of Local Fund. The grandfather, father or

present petitioners have not challenged the

entries as yet. Copy of Pahani Patrak of the year

1950-51 to 1959-60 is placed on record alongwith

affidavit in reply at Exhibit-R-2.

. In Paragraph-6 of the affidavit in reply,

respondent No.1 has denied the contentions in

paragraphs-4(B) to (D) of the petition and stated

that, it is admitted fact that, suit plot was

given on lease of 11 months by the Municipal

Council. As the possession was not vacated, the

Municipal Council filed civil suits bearing R.C.S.

Nos. 227 of 1983 and 231 of 1983 for recovery of

possession and recovery of amount. The Municipal

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Council let out suit premises to father of

petitioner No.1 on payment of monthly rent for the

period of 11 months in the year 1960. The

Municipal Council by issuing notice terminated the

tenancy. Dagdulal, father of the petitioners,

failed to deliver possession to the Municipal

Council. Therefore, R.C.S. No. 227 of 1983 was

filed by the Municipal Council, Osmanabad for

possession and recovery of amount. The Civil

Judge,Junior Division, Osmanabad by judgment and

decree dated 10/08/1984 allowed the claim of the

Municipal Council, Osmanabad. Copy of the

judgment and order passed in R.C.S. NO.227 of 1983

is placed on record alongwith affidavit in reply

at Exhibit-R-3.

. It is further stated in paragraph-7 of

the affidavit in reply by respondent No.1 that,

petitioner No.1 and other unauthorized occupants

made an application/representation to the

Collector, Osmanabad, seeking regularization of

their encroachment and for grant of Kabala,

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however, it is not conceded. Writ Petition NO.

4947 of 2003 was filed by the present petitioner

No.1 asserting his status to be encroacher in the

land Survey Nos. 239 and 240, claiming to have

been occupied the said land since 1960. He

asserted in the said writ petition for

regularization of encroachment. It is further

stated that, in the said writ petition, an

affidavit was ig filed by the then

Collector,Osmanabad on the basis of available

record for the period of 1954-55 and more

specifically Khasara Pahani Patrak and Pahani

Patrak from 1955 to 1960 that, Government is

possessor of the said property. Said writ petition

was withdrawn by the petitioner No.1 and he filed

R.C.S. No. 79 of 2004 for relief of permanent

injunction restraining the Municipal Council from

obstructing peaceful possession. Alongwith

affidavit in reply, respondent No.1 has placed on

record copy of affidavit in reply filed by the

Collector in W.P. No. 4947 of 2003.

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     .          In paragraph-8 of the affidavit in reply, 

respondent No.1 has denied the contentions raised

in paragraph-4(I) of the writ petition and stated

that, R.C.S. NO.79 of 2004 filed by the

petitioners was dismissed on 14/03/2007 by the

Civil Judge, Junior Division, Osmanabad. Being

aggrieved thereby, R.C.A. No. 64 of 2007 was filed

before the District Judge, Osmanabad and in the

said appeal, at the stage of judgment, an

application was moved under Order 41 Rule 27 of

the Code of Civil Procedure and first time the

plaintiffs produced false and fabricated sale

deed. In paragraph-8 the operative part of the

order passed in R.C.A. No. 64 of 2007 is

reproduced. In paragraphs-9 and 10 of the

affidavit in reply, the respondent No.1 has denied

the contentions raised in Paragraph-4(J) to (L) of

the petition and it is stated that, Municipal

Council filed W.P. No. 1828 of 2010 challenging

the interim order passed on the application filed

under Order-41 Rule 27 of the Code of Civil

Procedure at the stage of judgment. However, since

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R.C.A. NO. 64 of 2007 was adjudicated, therefore,

said writ petition was withdrawn.

. It is further stated in the affidavit in

reply that, being aggrieved by the judgment and

decree in R.C.A. No. 64 of 2007 the respondent-

Municipal Council preferred Second Appeal No. 368

of 2010. The Municipal Council initiated

proceedings before the Deputy Collector, Osmanabad

under Bombay Government Premises (Eviction) Act,

1955 ( for short, "Act of 1955") for possession.

The Deputy Collector, Osmanabad by order dated

25/10/2010 allowed the prayer of respondent NO.1

and passed order of eviction. Said order was

passed under Act of 1955 and in view of the said

order, respondent No.1 withdrawn Second Appeal No.

368 of 2010 on 21/12/2010. It is further stated in

paragraph-12 of the said affidavit in reply that,

District Judge, Osmanabad in R.C.A. No. 275 of

2010 without considering legality of the judgment

and order passed under the Act of 1955 allowed the

appeal. Being aggrieved by the said order of the

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District Court, respondent No.1 filed W.P. No.

7949 of 2011. Said writ petition was allowed

thereby confirming the order passed by the Deputy

Collector, Osmanabad and setting aside the

judgment and decree passed in R.C.S. No. 275 of

2010 on 29/02/2012. The relevant observations of

the High Court in paragraph-10 of the said

judgment in the aforementioned writ petition have

been reproduced in paragraph-12 of the affidavit

in reply. In paragraph-13 reference is made to

the L.P.A. No. 87 of 2012 in which the Division

Bench of the High Court observed that, the Court

is not inclined to entertain the L.P.A. and there

is no error in the order of the learned Single

Judge in W.P. No.7949 of 2011.

. In paragraphs-14 and 15 of the affidavit

in reply, respondent No. 1 has adverted to the

observations made by the trial Court while

dismissing the application at Exhibit-5 in

paragraph-31 of the judgment. In paragraph-16,

reference is made to the various judgments of the

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High Court and Supreme Court. It is stated that,

petitioner No.1 filed R.C.S. No. 79 of 2004 and

admitted that, he is encroacher. Therefore, in

pursuance of Section 116 of the Indian Evidence

Act, principle of estoppel comes into play and

therefore, no person is allowed to appropriate and

reprobate at the same time. In paragraph-17 of the

affidavit in reply, reference is made to the

contention of the plaintiffs about sale deed dated

04/02/1953 and will deed dated 17/08/1970 and it

is stated that, the contents of the will deed

itself speaks about the falsification of the sale

deed dated 04/02/1953. In paragraphs-18,19 and 20,

it is stated that, since the District Court has

concurred with the findings of facts recorded by

the trial Court, therefore, this Court may not

interfere in the concurrent findings of facts

recorded by the Courts below. In paragraph-21 of

the affidavit in reply, it is stated that,

Municipal Council is working in the interest of

public at large and as respondent No.1 wants to

develop the property from the funds allotted by

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the Central Government, when the Municipal Council

already has constructed part portion of the suit

property by constructing Shopping Complex on

Survey Nos. 239 and 240 except the suit portion of

the petitioners. It is stated that, in case

injunction is granted in favour of the

petitioners, it will cause irreparable loss to

respondent No.1 who is a public body.

8.

Respondent No.1 has also filed additional

affidavit in reply. Paragraphs-4,5,6, and 6 of the

said additional affidavit in reply reads thus :

"4. At the outset, I respectfully say that, in Nijam regime the Municipal Council, known as Local Fund. The local

fund acquired the land survey No. 2, Sy.

No. 239 and sy. No. 240, by paying amount of from the account of LOcal Fund in the year 1349 Fasli. The letter given by the

then Tahsildar is in Urdu Script clearly disclosed that the Local Fund i.e., present Municipal Council, acquired the land for Development of Shopping center

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and playground.

5. I respectfully say and submit that, the present answering respondent No. 1 is

Municipal Council working in the interest of public at large and as the respondent no. 1 wants to develop the property from

funds allotted by the Central Government, and the Municipal Council already part portion constructed of the shopping

complex on the land sy. No.239 and 240. I

say that, some of the land is remain to be constructs due to litigation and some

construction on the land Sy. No. 230 and 240 has been in progress. I say that, the old record of the revenue and the record

of the local fund since 1348 Fasli is taken into consideration the alleged sale

deed of the year 1953 is bogus and fabricated one. Therefore, considering

the balance of convenience and merits old revenue record i.e., Pahani Patrak 13549 Fasli, the letter given by then Tahsildar in urdu script and the record record since

1954 till today the name of the Government i.e, local fund and then the Municipal Council is on record. If injunction granted in favour of the petitioners then irreparable loss would be caused to the

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public at large. This would be against the interest of general public. Hereto annexed

and marked at EXHIBIT-R-11 is the copy of plan of the shopping complex and the photo

copies of the constructed under construction shopping complex.

6. I respectfully say and submit that, I say the Municipal Council Osmanabad expended the amount of Rs. 1

crores, for the construction of site No.

52, the amount of Rs. 2.5 for construction of site No. 71 and amount of Rs. 1.35

crores for construction of site No. 72 on the land sy. No. 239 and 240. After construction of shopping complex the

Municipal Council has allotted the same to the needy persons in auction on rent as

per law. Hereto annexed and marked at EXHIBIT-R-12 is the copy of list of shop

holders.

6. I respectfully state that, the alleged sale deed which is unregistered

document is not a presumptive value under the transfer of property Act. Also the alleged sale deed is false and fabricated one. Because the father of the petitioner No.1 himself admitted the tenancy

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Therefore, considering the principle of estoppel under section 116 of Indian

Evidence Act. The petitioners have no good case and no balance of convenience in

their favor. Therefore both learned courts below rightly concurrently held that, the plaintiffs failed to establish a prima-

facie case and fail to prove their possession referable to the title/ownership.

It is in the view of the facts and circumstances mentioned herein above

the writ petition is liable to be dismissed with costs."

9. Relying upon the averments in the

affidavit in reply and also documents placed on

record, learned Senior Counsel appearing for

respondent No.1 invited my attention to the

observations of this Court while disposing of W.P.

No. 7949 of 2011. It is submitted that, High Court

while allowing the writ petition filed by

respondent No.1 have made categorical

observations about the claim of the petitioners

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claiming title, ownership of the suit property.

The Division Bench of the High Court has dismissed

L.P.A. filed by the petitioners challenging the

judgment and order in writ petition and said

L.P.A. is also dismissed by the Division Bench of

this Court thereby confirming the judgment and

order passed by this Court in W.P. No.7949 of

2011. It is submitted that, two suits were

instituted by respondent No.1 being R.C.S. No.227

of 1983 and 231 of 1983 in which father of the

petitioners namely Dagdulal Zumbarlal Bangad was

the defendant. It is submitted that, father of

petitioners appeared in the said suits and

defended himself as tenant of the suit property.

Therefore, now it is not open for the plaintiffs

who are sons of said Dagdulal Bangad to contend

that, they have title or ownership over the suit

property. The judgment and order in the said suits

is binding upon the legal heirs of Dagdulal

Bangad. It is submitted that, even petitioner NO.1

filed writ petition before the High Court praying

therein, to regularize his encroachment.

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Therefore, learned Senior Counsel appearing for

respondent No.1 submits that, both the Courts

below concurrently held that, the petitioners are

not entitled for temporary injunction as prayed.

It is submitted that, judgment and order passed in

R.C.S. Nos. 227 of 1983 and 231 of 1983 has

attained finality. Thereafter, eviction

proceedings are taken against the petitioners.

Even Deputy Collector passed order thereby

granting eviction order. It is submitted that, the

petitioners aggrieved by the order of eviction

filed Regular civil appeal which was allowed and

it was ordered that, the petitioners should not be

dispossessed without due process of law. Said

judgment and order in Regular Civil Appeal is

quashed and set aside in the writ petition filed

by respondent No.1. Judgment and order in the said

writ petition has attained finality, in as much as

L.P.A. filed by the petitioners is dismissed by

the Division Bench. It is submitted that merely

because the Division Bench has observed that, in

case petitioners desire to file suit claiming

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declaratory reliefs in respect of subject

property, then observations by the learned Single

Judge in respect of title documents of subject

property shall not come in the way of the

petitioners, cannot be mean to say that, the

Division Bench has interfered in the judgment and

order of the learned Single Judge in W.P. No. 7949

of 2011.

.

It is further submitted that, in

paragraph-5 of the judgment, Division Bench has

observed that, after considering submissions

advanced and perusal of the documents placed on

record, the Court is not inclined to entertain

L.P.A. and there is no error in the impugned order

of the learned Single Judge. Therefore, according

to learned Senior Counsel for respondent No.1, the

writ petition sans merits and deserves to be

rejected. He invited my attention to the certain

documents/photographs placed on record to contend

that, already Shopping Complex has been

constructed by respondent No.1 and only small

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portion which is unauthorizedly occupied by the

petitioners is remained to be constructed. He

submits that, budget is made available by the

State of Maharashtra for construction and in

case, respondent No. 1 is not allowed to develop

schedule 'A' property, irreparable loss would be

caused to the interest of the public at large

since respondent No.1 is public body. It is

further submitted that, in view of the concurrent

findings of facts recorded by the Courts below,

this Court may not interfere in the said

concurrent findings of facts since view taken by

the Courts below is in consonance with the

material placed on record. It is submitted that,

this Court cannot convert himself as a Court of

Appeal and re-appreciate or re-valuate of findings

and therefore, writ petition deserves to be

dismissed.

10. It is further submitted that, the order

passed by the Division Bench in L.P.A. attained

finality. It is submitted that, in earlier

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proceedings the plaintiffs/petitioners prayed

that, they are in possession of 100' x 70',

however, now they are claiming that, they are in

possession of some more area. That itself shows

that, entire case of the plaintiffs is false and

rightly relief is refused by the Courts below. It

is submitted that, the order passed by the

Resident Deputy Collector is accepted by the

petitioners. It is submitted that, this Court in

W.P. No. 7949 of 2011 in paragraph-11 has observed

that, suit filed by respondent No.2 was

simplicitor for injunction. No question of title

was involved. In Regular Civil Appeal No. 64 of

2007, production of unregistered sale deed was

allowed. Sale deed could not be accepted to be

registered as it was for an amount of Rs.96/- and

no registration was mandatorily required. It is

submitted that, this Court while deciding the said

writ petition has observed that, sale deed dated

04/02/1953 has seen light of the day for the first

time in Appeal No. 64 of 2007, that too by way of

an application under Order 41 Rule 27 of the Code

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of Civil Procedure, even if the said document is

treated to be 30 years old, implying benefit of

Section 90 of the Evidence Act, law does not

contemplates, such document never used since 1953,

should be blindly accepted as a title document by

presumption. Therefore, relying upon the

observations in the said judgment which is

confirmed in L.P.A., learned Senior Counsel

appearing for respondent No.1 submits that, writ

petition deserves to be rejected.

. Learned Senior Counsel appearing for

respondent No.1 pressed into service exposition of

Supreme Court in the case of Ranjeet Singh vs.

Ravi Prakash reported in AIR 2004 SC 3892 and in

particular paragraph-4 thereof, and argued that,

this Court may not indulge into exercise of re-

appreciation or re-evaluation of evidence or

correcting the errors in drawing inferences like a

Court of appeal when findings recorded by the

Courts below are not perverse in any manner.

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11. Learned A.G.P., appearing for respondent

No.2 adopted arguments of the Senior Counsel

appearing for respondent No.1 and submitted that,

the writ petition deserves to be dismissed.

12. I have given careful consideration to the

submissions of the Counsel appearing for the

parties. With their able assistance perused the

pleadings, grounds taken in the petition,

annexures thereto, impugned judgment and order

passed by the Courts below, affidavit in reply

filed by respondent No.1, rejoinder affidavit

filed by the petitioners and also judgment and

order in R.C.S. Nos. 227 of 1983 and 231 of 1983,

all other orders passed by the competent Courts

and also order of eviction passed by the concerned

authority and the judgments cited supra, by the

learned Counsel appearing for the parties.

13. At the outset, it would be relevant to

mention that, in R.C.S. No. 227 of 1983 and 231 of

1983 which was filed by respondent No.1 herein,

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for possession of the suit property, arrears of

rent and mesne profits, Dagdulal Zumbarlal Bangad

was the defendant. Said Dagdulal is father of the

present petitioners. It is not in dispute that,

throughout proceedings of the said suits, Dagdulal

defended the proceedings as a tenant of the suit

property and suffered decree passed in those

suits. It is admitted position that, petitioner

No.1 herein, did file writ petition before the

High Court praying for regularization of

encroachment over the suit property by him.

Therefore, he understood his status as encroacher.

It appears that, the entire case of the

petitioners rest upon the documents produced by

way of filing application under Order 41 Rule 27

of the Code of Civil Procedure in R.C.A. No. 64 of

2007 first time in appeal which was basically

filed aggrieved by the rejection of the prayer of

the petitioners from dispossessing them in

pursuance of the execution of decree in R.C.S. No.

227 of 1983 and 231 of 1983. It appears that, the

petitioners herein, filed R.C.S. No. 79 of 2004

31 wp8400.13

before the trial Court at Osmanabad. Said suit

was filed since defendant No.1 issued notice to

plaintiff No.1 directing him to vacate the suit

premises described in Schedule 'A'. In view of

dismissal of the said suit, plaintiffs i.e.

petitioners herein, preferred appeal bearing

R.C.A. No. 64 of 2007 in the District Court,

Osmanabad in which first time, the application was

filed under Order 41 Rule 27 of the Code of Civil

Procedure for production of documents. However,

the said appeal filed by the petitioners was

allowed thereby setting aside the judgment and

decree in R.C.S. No. 79 of 2004 and the respondent

No.1 was restrained from obstructing possession of

the suit property at Osmanabad in front of Janta

admeasuring 100 feet east west and 70 feet south

north at present bounded by to the East back ward

class boys' hostel, to the West Solapur-Aurangabad

road, to the South Labour Welfare Centreand to the

North property of Shrirang Gundiba Kakade till the

respondent obtains possession of the suit property

32 wp8400.13

by following due process of law as per provisions

contained in Section 88(1) and Section 100-A of

Maharashtra Municipal Councils, Nagar Panchayats

and Industrial Township Act, 1965. Therefore,

limited protection was granted to the petitioners

in the said appeal.

. Respondent No.1 herein, did challenge the

said judgment and order by filing second appeal.

However, it appears that, second appeal was

withdrawn since by that time, Resident Deputy

Collector, Osmanabad passed order of eviction of

the original respondent No. 2 i.e. petitioner No.1

herein.

14. It appears that, Resident Deputy

Collector, Osmanabad passed order directing

eviction of Ramchandra Dagdulal Bangal, i.e.,

petitioner No.1 herein, being aggrieved by the

said order, Regular Civil Appeal No. 275 of 2010

was preferred and same was allowed by reversing

judgment and order rendered by the Resident Deputy

33 wp8400.13

Collector directing eviction of the petitioner

No.1 herein, under the provisions of Act of 1955.

Said judgment and order in R.C.A. No. 275 of 2010

was challenged in W.P. No. 7949 of 2011 by

respondent No.1 before the High Court. In the said

writ petition, High Court by judgment and order

dated 29/02/2012 referred to the judgment and

order in R.C.S. No. 227 of 1983 in paragraph-3 and

also to other proceedings between the parties in

paragraphs-4,5 and 6. In paragraph-7 of the said

judgment, High Court has adverted to the

proceedings initiated by respondent No.1 before

Deputy Collector, Osmanabad under the Act of 1965.

In paragraph-8 of the said judgment, this Court

has considered the provisions of Section 88F and

100A of the Act of 1965. This Court in

paragraphs-8 and 9 of the said judgment has

considered the submissions of the petitioner No.1

herein, that the observation in R.C.A. No.64 of

2007 has reached finality as Second Appeal NO. 368

of 2010 preferred by the Municipal Council is

rejected on 21/12/2010 by this Court. In the said

34 wp8400.13

judgment, this Cort has considered outcome of

R.C.S. No. 227 of 1983 and R.C.A. No. 64 of 2007

in paragraphs-11,12,13, and 14. Paragraphs-10 to

14 from the said judgment are reproduced herein

below:

"10. The basic theme in the matter has commenced by Municipal Council filing

suit in the year 1984, referred above.

The respondent no.2, or his father did not assert his rights as owner, or based

on any title document he, in unequivocal terms, accepted ownership of the Municipal Council to the property and

his old relationship as lessee. Consequently, under the law and,

particularly, in terms of Section 116 of the Evidence Act, it is not open for

respondent no.2 to challenge the authority of his landlord. Again, said judgment in RCS 227/1983, has reached finality as it is nowhere challenged by

respondent no.2.

11. The suit filed by respondent no.2 was simpliciter for injunction. No question of title was involved or

35 wp8400.13

declaration of his title was solicited. In Regular Civil Appeal No.64/2007,

production of unregistered sale deed was allowed. Learned Counsel submits, the

sale deed could not be accepted to be registered as it was for an amount of Rs.96/and no registration was

mandatorily required. Though this submission is glorious, however, difficult to digest. As sale deed of

4.2.1953, has seen light of the day for

the first time in Appeal No.64/2007, that too by way of an application under

Order 41 Rule 27 of Code of Civil Procedure, even if the said document is treated to be 30 years old, implying

benefit of Section 90 of the Evidence Act. The law does not contemplate, such

document never used since 1953, should be blindly accepted as a title document

by presumption. The requirement of proof to contents of document, proper custody, handwriting of the maker needs to be established. Attestation has also to be

proved. The learned District Judge committed an illegality to proceed with this sale deed.

12. The conduct of respondent no.2, as

36 wp8400.13

stated earlier, flows at least way back from 1983 in RCS No.227/1983, and he has

been, thereafter, remitting municipal taxes, cess and rent to the Municipal

Council without demur. Even if concession of earlier period from 1960 is extended, he has accepted that

premises was let out to the grand father of respondent no.2 on eleven months' lease agreement.

13. In this scenario of the matter, the Municipal Council approaching the

learned Deputy Collector for seeking possession of the property in question, cannot be branded as clothed with

illegalities.

14. In the afore referred fact situation demonstrates that the property vests in

the Municipal Council, as it was earlier so vesting, in the legal opinion. Even if it is referred to be in possession of the Government, that will not deflate

rights of the Municipal Council as Section 88 sub clause (2) of Municipal Act takes precaution; whatsoever rights Municipal Council asserts, will be subject to clog created by Statute.

37 wp8400.13

However, for that purpose, respondent no.2 is not permitted under the law to

challenge status, title and authority of the Municipal Council to seek possession

from respondent no.2. The State and the Municipal Council are not at loggerheads on title of the property."

. In paragraph-15 of the said judgment,

this Court has considered jurisdiction/power of

Resident Deputy Collector and after considering

rival contentions in paragraph-16 observed that,

the order of the District Judge dated 12/04/2011

in R.C.A. NO. 275 of 2010 is quashed and set aside

while order of the Resident Deputy Collector is

restored.

15. Upon careful perusal of paragraphs-10 to

14 from the said judgment which are reproduced

herein above, learned Single Judge of this Court

has, in substance, dealt with the submissions of

the present petitioners about their claim on suit

property relying upon the alleged sale deed of

38 wp8400.13

1953 and other documents which first time have

seen the light of the day in the year 2007 in

R.C.A. No. 64 of 2007. Therefore, as long as suit

of the petitioners is not decided finally, said

observations/findings in the judgment of this

Court in W.P. No. 7949 of 2011, not accepting the

claim of the petitioners relying upon the

documents which were first time produced before

the competent Court in the year 2007 in R.C.A. No.

64 of 2007, would remain in force. As already

observed, father of the petitioner No.1 accepted

his status as tenant of the suit property,

petitioner No.1 herein, also accepted his status

as encroacher on the suit property and now, by way

of filing fresh suit, relying upon the alleged

sale deed and will deed which was allegedly

executed in the year 1953 and 1970, the

petitioners i.e., original plaintiffs are claiming

relief of temporary injunction against respondent

No.1. When the order of eviction is already passed

by the competent authority and which is confirmed

not only by learned Single Judge of this Court in

39 wp8400.13

W.P. No. 7949 of 2011 but by the Division Bench of

the High Court upon considering the case on

merits, in L.P.A. No. 87 of 2012.

16. Upon perusal of paragraph-5 from the

judgment of Division Bench in L.P.A. No. 87 of

2012, there is no doubt that, judgment and order

dated 29/02/2012 passed by the learned Single

Judge in the W.P. No. 7949 of 2011 has been

confirmed by the Division Bench with observations

that, there is no error in the order of the

learned Single Judge.

17. In the light of provisions of Order 39

Rule 1 and 2 of the Code of Civil Procedure, if

the material placed on record is examined in its

entirety, balance of convenience lies in favour of

respondent No.1 who is a public body.

. Therefore, taking into consideration

concurrent findings of facts record by the courts

below, which appears to be in consonance with the

40 wp8400.13

material placed on record, this Court is not

inclined to interfere in the said concurrent

findings of facts recorded by the Courts below.

The findings recorded by the Courts below are in

consonance with the material/documents placed on

record and therefore, there is no reason to

interfere in the judgment and order passed by the

Courts below. As rightly contended by the learned

Senior Counsel appearing for respondent No.1,

relying upon authoritative pronouncement of the

Supreme Court in the case of Ranjeet Singh

(supra), the High Court will not convert itself as

Court of appeal and will indulge into re-

appreciation and re-evaluation of evidence or

correcting errors in drawing inference like the

Court of appeal. The very conduct of the

plaintiffs i.e. petitioners herein, disentitles

them from seeking any interim relief in view of

the stand taken by their father and plaintiff No.1

in the earlier proceedings and now different stand

taken by the plaintiffs in the present

proceedings. Showing any indulgence or granting

41 wp8400.13

any relief in favour of the petitioners pending

suit would be adding premium to the dishonest

conduct of the plaintiffs of shifting their status

from tenant to encroacher and thereafter, claiming

declaratory reliefs relying upon the alleged sale

deed of the year 1953 and will deed of the year

1970. Respondent No.1 is a local authority and

public body and in its development, public element

is involved and budgetary provision is made for

construction of the suit property by the State

Government. Therefore, if all the ingredients of

Order 39 Rule 1 and 2 of the Code of Civil

Procedure are considered, in the facts of the

present case, certainly balance of convenience

lies in favour of respondent No.1 and in case the

petition is entertained, that would cause great

prejudice to the interest of respondent No.1 and

ultimately to the interest of public at large.

This Court fully concurs with the findings

recorded by the trial Court which are confirmed by

the District Court. Therefore, those findings are

not re-iterated or re-produced.

42 wp8400.13

18. For the aforesaid reasons, writ petition

sans merit, hence rejected. Rule stands

discharged.

sd/-

[S.S. SHINDE, J.]

. At this stage, learned Counsel appearing

for the petitioners prays for continuation of the

order dated 23/09/2013 passed by the Adhoc

District Judge-1, Osmanabad below Exhibit-32 in

Misc. Civil Appeal No. 100 of 2012 by which,

District Court observed that, status-quo to

continue for three weeks from 23/09/2013. Said

order was continued by this Court till date.

. Learned Counsel appearing for respondent

No.1 vehemently opposed the prayer. He submits

that, development is held up.

. In the light of submissions made across

the bar, prayer for continuation of the order

passed by the Adhoc District Judge-1, Osmanabad

43 wp8400.13

dated 23/09/2013 stands rejected.

sd/-

[ S.S. SHINDE, J .]

Tupe/03.12.13