Bombay High Court
Keshav S/O Tukaram Kshirsagar And ... vs Mahendra S/O Nilkantrao Deshmukh ... on 6 June, 2016
Bench: Z.A. Haq
1 wp2458.14
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.2458 OF 2014
1) Keshav s/o Tukaram Kshirsagar,
Aged about 42 years,
Occupation - Agriculturist,
2) Smt. Vaishali w/o Keshav Kshirsagar,
Aged about 37 years,
Occupation - Household.
Both petitioners Nos. 1 and 2
R/o Village Nimba, Taluka-Murtizapur,
District Akola. .... PETITIONERS
VERSUS
1) Mahendra s/o Nilkantrao Deshmukh,
Aged about 42 years,
Occupation - Agriculturist,
R/o Village Nimba, Taluka Murtizapur,
District Akola.
2) Ramesh s/o Daulatrao Gavhale,
Aged about 64 years, |(Deleted as per
Occupation - Agriculturist, |Court's order dt.
R/o Village Pinjar, Taluka-Barshitakli, |02-09-2014)
District Akola, at present residing at
VMV Road, Amravati, Taluka-District
Amravati. .... RESPONDENTS
______________________________________________________________
Shri H.R. Gadhia, Advocate for the petitioners,
Shri S.D. Chande, Advocate for the respondent No.1.
______________________________________________________________
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CORAM : Z.A. HAQ, J.
DATED : 6
JUNE, 2016
th
ORAL JUDGMENT :
1. Heard Shri H.R. Gadhia, Advocate for the petitioners/
original defendants and Shri S.D. Chande, Advocate for the respondent
No.1/plaintiff.
2. Rule. Rule made returnable forthwith.
3. The petitioners have challenged the order and judgment
passed by the trial Court and District Court concurrently upholding the
claim of the respondent No.1/plaintiff for temporary injunction
restraining the petitioners/defendants from interfering with the
possession of the respondent No.1 over the suit field till the decision of
the civil suit.
4. The learned Advocate for the petitioners has submitted
that the mother of the respondent No.1 sold the suit field to Maniklal
and Diwakar by registered sale-deed executed in 2004, Maniklal and
Diwakar sold the suit field to respondent No.2 and the respondent
No.2 sold the suit field to the petitioners by two separate sale-deeds
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executed on 14-02-2011. It is submitted that the respondent No.1 has
no right, title or interest over the suit field and therefore, he cannot
seek temporary injunction to oust the petitioners who are the rightful
owners of the suit field. To support the submission, reliance is placed
on the judgment given by the Hon'ble Supreme Court in the case of
Premji Ratansey Shah vs. Union of India reported in 1994(5) SCC
547.
5. After going through the documents placed on the record
and the impugned order and the impugned judgment, I find that the
subordinate Courts have properly appreciated the material placed on
the record. In paragraph No.22 of the judgment passed by the District
Court, the learned Judge has considered the mutation entries in 7/12
extract, the fact that the names of the petitioners are mutated in
column No.7 and that the name of the respondent No.1 continues in
column No.12 and after considering these entries, the learned District
Judge has rightly recorded that the respondent No.1 has prima-facie
established that he is in possession of the suit field. The respondent
No.1 claims to be owner of the suit field by inheritance. Though the
claim of ownership made by the respondent No.1 is disputed by the
petitioners, this issue will have to be decided by the trial Court on
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merits. The judgment given in the case of Premji Ratansey Shah does
not assist the petitioners as at this stage it cannot be said that the
respondent No.1 is a trespasser or a person who has acquired
possession unlawfully.
6. I do not find any patent illegality or perversity in the
impugned order and the impugned judgment. The petition is
dismissed. In the circumstances, the parties to bear their own costs.
As the civil suit is of 2011, the trial Court is requested to
dispose the civil suit till 15-01-2017.
JUDGE
pma
