Kamlabai Wd/O Vishwasrao ... vs Ushabai Sunil @ Sukhdeo Bhosle And ...
2016 Latest Caselaw 3540 Bom

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                                                                                 1

                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY, 




                                                                                                      
                                     NAGPUR BENCH, NAGPUR

                                                WRIT PETITION No.6239 OF 2015




                                                                                                     
    1.         Kamlabai wd/o Vishwasrao Deshmukh,
               Aged about 70 years, Occu. Household,

    2.         Sanjay s/o Vishwasrao Deshmukh,
               Aged about 47 years, Occu. Agriculturist, 




                                                                               
               Both r/o Near Bara Jyotirlinga Mandir, 
                                                 
               Ranpise Nagar,Akola, 
               Tah. And District Akola.      ...                                                                    ...                   Petitioner.
                                                
                                                 ..versus..  

    1.         Ushabai Sunil @ Sukhdeo Bhosle,
               Aged about 58 years, Occ. Retired, 
               R/o Anand Residency, Near Sai Mandir, 
        

               Near Datta Colony, Gaurakshan Road, 
               Akola, Tah. &Dist. Akola. 
     



    2.         Sau. Chhaya Bhaskar Dharmik,
               C/o Sunita Tekade, Behind Jaiswal
               School, Jay Mangal Murti Layout, 





               Sai Nagar (Wadi),Nagpur-440 016....                                                                    ...      Respondents.
    .......................................................................................................................................................

Mr. A.S. Dhore, advocate for petitioners.

Mr. U.J. Deshpande, advocate for respondent no. 1. .......................................................................................................................................................

                                                            CORAM                  :  A.S. CHANDURKAR, 
                                                                                                             J.





                                                            DATED                  :  01 st  
                                                                                               JULY,  2016.

    ORAL JUDGMENT

Rule. Rule made returnable forthwith. Heard finally with

consent of the learned counsel for the parties.

2. The petitioners who are the original defendants in a suit for

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partition and separate possession filed by the respondent no. 1 herein, are

aggrieved by the order passed by the Appellate Court thereby allowing the

appeal preferred by the respondent no. 1 and directing the petitioners to

maintain status-quo as regards their joint possession.

3. The facts in brief are thus -

One Vishwasrao was allotted land bearing Gat no. 87 ad-

measuring 6.35 Hectares. Said Vishwasrao expired on 6.8.1994. He was

survived by the petitioner no.1 who is widow and the petitioner no. 2 who is

his son. The respondent no.1 is the daughter of said Vishwasrao while

respondent no. 2 is her sister. It is the case of the respondent no. l that she

has one-fourth share in the suit property. It is her further case that in June,

2015 the petitioners illegally claimed the suit property to be owned by

defendant no.1 and sought to disturb the possession of the respondent no.1.

After issuing notice, the respondent no.1 filed the aforesaid suit for partition

and separate possession. An application seeking temporary injunction to

protect her possession also case to be filed. The petitioners filed a separate

application praying therein that the respondents be restrained from

disturbing the possession of petitioner no.1 in the suit property. Both the

applications were tried together. The trial court rejected the application

moved by the respondent no.1 and allowed the application moved by the

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petitioner no.1. Being aggrieved, the respondent no.1 challenged aforesaid

order by filing a miscellaneous civil appeal. The Appellate Court allowed the

said appeal and restrained the petitioners from alienating the suit property

and further directed the parties to maintain status-quo as regards their joint

possession. Being aggrieved, the present writ petition has been filed.

4. Shri Dhore, the learned counsel for the petitioners submitted

that the Appellate Court was not justified in allowing the appeal preferred by

the respondent no.1. According to him, the trial Court after due

consideration of the documents on record proceeded to grant injunction

infavour of the defendant no.1. The view as taken by the trial court was on

the basis of material on record and hence a possible view. He submitted

that it was not open for the Appellate Court to have substituted its view with

that of the trial court merely on the ground that another view of the matter

was possible. He further submitted that while the trial court recorded a

finding with regard to possession of the defendant no.1, the Appellate Court

did not set aside the said finding and merely on the basis of title to the suit

property allowed the appeal. According to him, the plaintiff was residing at

Ajmer and had returned to Akola in September, 2014. Without pleading the

date on which she entered possession, the case of the plaintiff could not

have been accepted. In support of his submissions, he relied upon the

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judgment of the Hon'ble Supreme Court in (2013)(9) SCC 221 (Mohd.

Mehtab Khan and others. Vs. Khushnuma Ibrahim Khan and others.)

5. Shri U.J. Deshplande, the learned counsel for the respondent

no.1 supported the impugned order. According to him, the Appellate Court

was justified in holding that the respondent no.1 was in possession of the

suit property and hence the parties were directed to maintain status quo

with regard to the joint possession. He submitted that the mutation entries

that were carried out were in the capacity of treating the parties as legal

heirs of Vishwasrao and not on the basis of the alleged Will. He submitted

that these mutation entries showed the possession of the respondent no. 1

and as they had presumptive value, the same could not be ignored. In

support of his submissions he placed reliance on the judgment of learned

Single Judge in 1991(4) Bom. C.R. 251 ( Shriram Narayan Dhond &

another. Vrs. Demu Surya Gaude). He, therefore,submitted that there is no

reason whatsoever to interfere in writ jurisdiction.

6. I have heard the respective counsel for the parties and I have

perused the documents on record. The relationship between the parties is

not in dispute. The suit was filed in July, 2015 for partition and separate

possession along with an application for temporary injunction. It is the case

of the plaintiff that on 19.6.2015 her husband was threatened by the

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defendant no. 3 that he would be dispossessed from the suit property and

hence report came to be lodged. It is thereafter that the present suit claiming

one-fourth share in the suit property along with the injunction application

came to be filed. In the application below Exh.5 it was averred that the

plaintiff was in possession and had in fact cultivated the field in question and

there was standing crops. Along with the said application, the plaintiff filed

report dated 24.6.2015. In said report it was stated that after her retirement

she started to live at Akola from September, 2014. The other documents

filed on record were the 7/12 extracts and the notices exchanged between

the parties.

7. The defendant no. 1 came with a specific case that the land was

in her possession. She relied on the Will dated 7.5.1994 along with

certificate issued by the Police Patil and Sarpanch. In these documents, the

possession of the defendant no. 1 was recorded. After considering these

documents, the trial court found that the pleadings of the plaintiff with

regard to actual possession of one-fourth share and its cultivation were not

specific. The trial court found that the affidavits placed on record by the

defendant no. 1 indicated her possession and on that basis declined to grant

temporary injunction in favour of the plaintiff but granted injunction in

favour of defendant no.1.

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8. The Appellate Court while considering the appeal filed by the

original plaintiff observed in para 14 of its order that it was necessary for the

plaintiff to have pleaded about her separate possession in eastern side

portion of the land in question. Thereafter in para 15 it was further observed

that main difficulty for the plaintiff was that her pleadings were contrary to

the story put up by her. Thereafter the Appellate Court proceeded to

observe that unless the property in question was partitioned, each party

would have a legal right thereon and the possession would be that of a co-

owner after which it proceeded to allow the aforesaid appeal.

9. From the order of the Appellate Court it can be seen that the

Appellate Court itself was not satisfied with the approach of the plaintiff. It

has further recorded a finding that the conclusion of the trial court as to

possession of the defendant no. 1 was contrary to the documents on record.

But without discussing this aspect in the order impugned, the same came to

be allowed only on the ground that the ownership of the property was of

joint nature and therefore unless the same was partitioned, the plaintiff's

right could not be disturbed. It ought to have been seen that the Appellate

Court was considering the prayer for grant of interim relief and therefore the

aspects relevant in that regard ought to have been considered. As held by the

Hon'ble Supreme Court in Mohd Mehtab Khan and others (supra), the view

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taken by the trial court on the basis of material on record is a possible view

of the matter and merely because another view of the matter is possible,

the view of the trial court could not be substituted by the Appellate Court.

10. As regards the reliance placed on the mutation entries, the same

indicates the names being shown in the capacity of legal heirs of Vishwasrao.

That position is not in dispute. The observation of the trial court that the

plaintiff has failed to point out when she entered into the possession of the

eastern portion of the property that was in her possession was justified while

considering the prayer for temporary injunction. The decision relied upon by

the learned counsel for the respondent no.1, is on the aspect of weightage to

be given to mutation entries. In the present case, however, though the

name of the plaintiff is shown as owner in the suit property, the other

documents indicate the possession of the defendant no.1 as found by the

trial court. Hence, the observations made in the said decision cannot support

the case of the respondent no.1.

11. In view of aforesaid, I find that the Appellate Court was not

justified in interfering with the order passed by the trial court. By doing so, it

has substituted the view of the trial court without any legal basis and against

the law laid down by the Hon'ble Supreme Court in Mohd Mehtab Khan and

others (supra). Hence, the following order is passed.

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(i) The order dated 23.10.2015 passed in M.C.A. No. 63/2015 to

the extent of direction nos. 2 & 4 therein is set aside. The direction no. 3 in

said order that the defendants shall not alienate the suit property shall

continue to operate. The order passed by the trial court below Exh. 26 is

restored.

(ii) It is made clear that the civil suit shall be decided on its own

merits, without being influenced by any of the observations made in this

order or in the order of the Appellate Court while deciding the application

for temporary injunction.

(iv) The writ petition is allowed in above terms, with no order as to

costs.

JUDGE

Hirekhan

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