Bombay High Court
Nanaappa Tulshiramappa Wani And 7 ... vs Kundanmal S/O Govardhan Zanwar ... on 6 December, 2017
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR
BENCH AT NAGPUR
Writ Petition No.2713 of 2015
Petitioners 1) Nanaappa Tulshiramappa Wani,
Aged about 66 Years, Occupation: Agriculturist.
2) Shailesh s/o Nanaappa Wani,
Aged about 64 years, Occupation: Agriculturist.
3) Sureshappa Tulshiramappa Wani,
Aged about 62 years, Occupation: Agriculturist
1 to 3 all R/o Budhwara, Amravati.
4) Prakashappa Tulshiramappa Wani,
Aged about 60 years, Occupation: Agriculturist.
5) Ku. Prabha d/o Tulshiramappa Wani,
Sau. Prabha V. Mvlange,
Aged adult, Occupation: Agriculturist,
4 to 5 R/o Kokarda, Tq. Anjangaon Surji,
Dist. Amravati.
6) Kantabai Ambadas Appakarne,
Aged about 60 years, Occupation- Household.
7) Rajesh s/o Ambadas Appakarne,
Aged about 36 years, Occupation: Service.
8) Nilesh s/o Ambadas Appakarne,
Aged about 32 years, Occupation: Service,
6 to 8 R/o Budhwara, Amravati.
-Versus-
Respondent Kundanmal s/o Govardhan Zanwar,
Aged about 80 years, Occupation: Agriculturist
Through his Power of Attorney, Dhanraj
Kundanmal Zanwar, Aged about 58 years,
R/o Kokarda, Tq. Anjangaon Surji, Dist. Amravati.
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Shri C.B. Dharmadhikari, Advocate for the petitioner.
Shri A.S. Mardikar, Senior Advocate with Shri N.R. Tekade, Advocate for
the respondent.
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CORAM : Z.A. HAQ, J.
DATED : 6th December, 2017
Oral Judgment
1. Heard.
Rule. Rule made returnable forthwith.
2. The respondent / plaintiff has filed the civil suit praying for
decree for declaration that the defendants have no right to disturb the
peaceful possession of plaintiff over the suit field without following the due
process of law. The plaintiff further prayed for decree for permanent
injunction restraining the defendants from interfering with the possession of
plaintiff over the suit field. In this civil suit, the plaintiff filed an application
under Order 39 Rules 1, 2 and 3 read with Section 151 of the Code of Civil
Procedure praying for temporary injunction. The defendants opposed the
claim of the plaintiff. By order dated 10 th October, 2013 the trial Court
rejected the application filed by the plaintiff praying for temporary
injunction with costs. This order was challenged by the plaintiff before
District Court in appeal which is allowed by the impugned judgment.
3. Shri A.S. Mardikar, learned Senior Advocate for the
respondent / plaintiff has submitted that the conclusions of the District
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Court are based on proper appreciation of documents on record which show
that the plaintiff is in settled possession of the suit field since last more than
four decades. Various orders passed in proceedings under the Maharashtra
Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short "the Act of
1961") are relied upon to contend that the respondent had been in
possession of the suit field since last more than four decades. It is further
submitted that the certificate given by the Talathi of village Sakhri on 7 th
October, 2013 and the affidavits of Subhash Jethmal Zanwar, Rajendra
Amrut Netanrao, Sadashiv Annaji Kakad and Ravi Vitthalrao Nalkande
(owners of adjoining fields) support the claim of the respondent / plaintiff
that he is in settled possession over the suit field.
4. The learned Advocate for the petitioners has submitted that the
plaintiff had not placed any evidence on record before the trial Court to
establish that he had been in settled possession at the time of filing of the
civil suit. It is argued that the reliance placed by the plaintiff on the orders
passed by the Authorities under the provisions of the Act of 1961 is
misplaced as at the stage of consideration of the application for grant of
temporary injunction, the plaintiff has to satisfy the Court that he had been
in settled possession of the property in question at the time of filing of the
civil suit and the orders which are passed four decades earlier are not
relevant at this stage. It is further submitted that the certificate issued by
the Talathi and the affidavits of the owners of adjoining fields are not
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sufficient for coming to the conclusion that the plaintiff had been in settled
possession of the suit field at the time of filing of the civil suit. It is
submitted that the plaintiff has not explained why he had not taken any
steps to see that his name is included in 7/12 extract showing that he had
been cultivating the suit land in 2012 - 2013.
5. On 7th May, 2015 this Court directed issuance of notice,
Advocate for respondent appeared and sought time and as the Advocate for
the petitioners made grievance that the respondent was trying to take
advantage of the order passed by the District Court, this Court passed an
interim order restraining both the parties from entering the field in
question until further orders. The notice issued by this Court was made
returnable on 9th June, 2015. The docket shows that after 7 th May, 2015
the writ petition was listed on 6th September, 2016 on which date it was not
taken up for hearing. Subsequently, the writ petition was listed on 21 st
October, 2016, 2nd December, 2016, 4th January, 2017, 18th January, 2017,
8th February, 2017, 22nd February 2017, 10th October, 2017 and 14 th
November, 2017 and it was adjourned. On 07 th May, 2015 at the time of
hearing, the respondent claimed that he had been in possession of the suit
field and had sown crops which were to be harvested and the petitioners
also claimed that they had been in possession of the suit field and had sown
crops which were to be harvested and considering the rival claims this Court
directed that none of the parties shall enter the suit field until further
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orders. Surprisingly, none of the parties showed eagerness to get orders
from this Court for taking the crops from the suit field. Though conduct of
both the parties is surprising, I am not required to examine the case of the
petitioners / defendants at this stage and I have to only examine whether
the plaintiff, who is claiming temporary injunction, has been able to
establish that he had been in settled possession over the suit field. As
recorded earlier, the respondent / plaintiff has not been able to establish
prima facie that he had been in settled possession of the suit field at the time
of filing of the civil suit and it is unexplained as to why respondent /
plaintiff has not taken any steps to obtain orders from this Court after 7 th
May, 2015 regarding removal of crops from the suit field, in my view, the
respondent / plaintiff is not entitled for the discretionary relief sought by
him.
6. In the above facts, following order is passed:
ORDER
(i) The impugned order passed by the District Court is
set aside.
(ii) The order passed by the trial Court on 10 th October,
2013 is restored and the application (Exh. No.5) filed by the
plaintiff praying for temporary injunction is rejected.
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(iii) Considering the nature of controversy and the fact
that the civil suit is pending since 2013 the trial Court is
directed to dispose the civil suit till 5th May, 2018.
Writ petition is disposed in the above terms.
In the circumstances, parties to bear their own costs.
JUDGE
Nandurkar.
