Shri Sadashio Govinda Zode And ... vs Shri Gulab Kashinath Borkar And ...
2017 Latest Caselaw 1768 Bom

 Judgment                                          1                                wp2624.16.odt




                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                 

                          NAGPUR BENCH, NAGPUR.


                           WRIT PETITION NO. 2624 OF 2016


 1.       Shri Sadashio Govinda Zode, 
          Aged about 55 years, Occ : Farmer,

 2.       Shri Mahadeo Govinda Zode, 
          Aged about 52 years, Occ.: Farmer, 

 3.       Shri Madhukar Govinda Zode, 
          Aged about 50 years, Occ.: Farmer, 

          All R/o. : Kharbi, Tah. : Nagbhid,
          District : Chandrapur.

          (ORIGINAL PLAINTIFFS)
                                                                     ....  PETITIONERS.


                                    //  VERSUS //


 1. Shri Gulab Kashinath Borkar, 
    Aged about 37 years, Occu.: Farmer, 

 2. Shri Dayaram Adaku Kamdi 
    Aged about 62 years, Occu.: Farmer,  

 3. Shri Lovekush Tulshiram Pustode, 
    Aged about 40 years, Occu.: Farmer, 

 4. Shri Rama Parasram Tembhurne, 
    Aged about 43 years, Occu.: Farmer, 

 5. Shri Vishwanath Rajeshwar Therkar, 
    Aged about 64 years, Occu.: Farmer, 

 6. Shri Bhaskar Akoji Gjane, 
    Aged about 63 years, Occu.: Farmer,  
     
 7. Shri Prakash Urkuda Mungmode, 
   Aged about 4 1 years, Occu.: Farmer,



::: Uploaded on - 04/07/2017                           ::: Downloaded on - 27/08/2017 23:41:52 :::
  Judgment                                            2                                wp2624.16.odt




 8. Shri Manoj Vishwanath Borkar, 
    Aged about 38 years, Occu.: Farmer, 

 9. Smt. Gopika W/o. Gopichand Anande, 
    Aged about 40 years, Occu.: Farmer,  

 10. Smt. Suman W/o.Dadaji Wakade, 
     Aged about 42 years, Occu.: Farmer, 

 11. Smt. Pushpa W/o. Pundlik Wakade, 
     Aged about 35 years, Occu.: Farmer, 

      All R/o. Kharbi, Tah.: Nagbhid,
      District : Chandrapur. 

      (ORIGINAL DEFENDANTS)
                                                       .... RESPONDENTS
                                                                     .
  ___________________________________________________________________
 Shri S.S.Ghate, Advocate for Petitioners. 
 Shri A.Y.Kapgate, Advocate for Respondent Nos.1 to 3.
 ___________________________________________________________________

                              CORAM : Z.A.HAQ, J.

DATED : APRIL 17, 2017.

ORAL JUDGMENT :

1. Heard.

2. RULE. Rule made returnable forthwith.

3. The original plaintiffs have challenged the judgment passed by

the District Court and order passed by the trial Court concurrently rejecting

their claim for grant of temporary injunction.

Judgment 3 wp2624.16.odt

4. After going through the impugned judgment and order I find

that the subordinate Courts have given undue emphasis to the point of title

in respect of the suit fields. While considering the application praying for

temporary injunction the subordinate Courts should have given due

weightage to the issue of possession on the date of filing of the civil suit.

From the pleadings of the defendants it is clear that the defendants are

admitting cultivating possession of the father of the plaintiffs till 2013.

According to the defendants, the suit field belongs to Deosthan and as father

of the plaintiffs was Police Patil of the village, he cultivated the suit field on

Batai and he was giving 3 Khandis (24 quintals) of paddy per year. According

to the defendants, as father of the plaintiffs failed to give 3 khandis of paddy

in 2013, the villagers took possession of the suit field and since then it is

being cultivated by the villagers on behalf of the deosthan.

5. In paragraph No.21 of the judgment the learned District Judge

has observed that the documents on record show that the plaintiffs are in

cultivating possession of the suit field, but they cannot be relied upon as

those documents only show paper possession of the plaintiffs and there is no

material on record to show that the plaintiffs are in actual possession of the

suit field. The learned District Judge has observed that the revenue records

showing names of the plaintiffs in cultivating possession cannot be relied

upon as the matter is pending for inquiry before the Revenue Authority.

Judgment 4 wp2624.16.odt

6. After examining the documents placed on the record of the

petition and hearing the learned advocates for the respective parties, I find

that the plaintiffs have been able to prima-facie establish that they are in

cultivating possession of the suit fields since long and they are entitled for an

order of temporary injunction as prayed for by them. However, looking to the

nature of the controversy to balance equities, in my view, some conditions

are required to be imposed on the plaintiffs.

Hence, the following order :

i) The impugned judgment and order are set aside.

ii) The application filed by the plaintiffs under Order XXXIX Rules

1 and 2 of the Code of Civil Procedure seeking order of

injunction against the defendants is allowed in terms of the

prayer of that application. However, this temporary injunction

shall operate till disposal of the civil suit on condition that the

plaintiffs deposit an amount of Rs.15,000/- per year before the

trial Court.

iii) The plaintiffs shall deposit the amount of Rs.15,000/- per

annum till 30th May of every year. The first deposit is to be

made till 30th May, 2017.

Judgment 5 wp2624.16.odt

iv) If the plaintiffs fail to deposit the amount, the order of

temporary injunction shall not be operative.

v) The trial Court shall pass order at the time of disposal of the

civil suit regarding disbursal of the amount which will be

deposited.

The petition is allowed in the above terms. In the

circumstances, the parties to bear their own costs.

JUDGE

RRaut..