Bombay High Court
Shivaji Vijay Gaikwad And Anr vs Baburao Narayan Magar And Anr on 15 December, 2017
Bench: Dr. Shalini Phansalkar-Joshi
Dixit
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.13508 OF 2017
1. Shivaji Vijay Gaikwad ]
Age - 29 years, Occ.-Agriculture, ]
R/at - Khandali, Tal. Malshiras, ]
District Solapur. ]
]
2. Prashant Laxman Jadhav ]
Age - 29 years, Occ - Agriculture, ]
R/at - Siddhewadi, Tal. Pandharpur, ]
District Solapur. ] ... Petitioners
Versus
1. Baburao Narayan Magar ]
Age - 74 years, Occ - Agriculture, ]
R/at - Khandali, Tal. Malshiras, ]
District Solapur. ]
]
2. The Brihan Maharashtra Sugar ]
Syndicate Ltd., Shripur, ]
Through the Chief Manager, ]
Office at - Shripur, Tal. Malshiras, ]
District Solapur. ] ... Respondents
Mr. Sandeep M. Phatak for the Petitioners.
Mr. V.S. Talkute for Respondent No.1.
CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.
DATE : 15 TH DECEMBER 2017.
ORAL JUDGMENT :
1. Rule. Rule is made returnable forthwith. Heard finally, by consent
of Mr. Phatak, learned counsel for the Petitioners, and Mr. Talkute,
learned counsel for Respondent No.1.
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2. By this Petition, filed under Article 227 of the Constitution of India,
Petitioners are challenging the order of interim injunction passed by the
3rd Joint Civil Judge, Junior Division, Malshiras, on 6 th March 2017,
which is confirmed by the learned Ad-Hoc Additional District Judge-1,
Malshiras, vide his order dated 15th November 2017 passed in
Miscellaneous Civil Appeal No.10 of 2017.
3. The case of the Petitioners is that, they are in actual possession of
the suit property bearing Gat No.1358, situate at Village Velapur, Taluka
Malshiras, District Solapur, having purchased the same from the
original owner i.e. Defendant No.1. Though Respondent No.1-Original
Plaintiff is contending that he is in possession of the suit land as a
tenant, his claim to that effect is already rejected and even the Tenancy
Appeal bearing No.30 of 2013 came to be dismissed to that effect,
thereby proving that Respondent No.1-Plaintiff has failed to prove his
claim of tenancy and also the possession over the suit land. Even in the
proceedings filed under Sections 145 and 146 of Cr.P.C, it was found that
Respondent No.1-Plaintiff is not in possession of the suit land and
possession of the suit land was taken over from the present Petitioners
and handed over to the Court Receiver on account of dispute relating to
the said aspect; thus, as on the date, the possession is with the Court
Receiver. According to learned counsel for the Petitioners, therefore,
when the findings given in the tenancy proceedings clearly go against
Respondent No.1-Plaintiff, it has to be held that, both, the Trial Court
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and the Appellate Court had committed an error apparent on the face of
the record in holding that Respondent No.1-Plaintiff is in possession of
the suit land and thereby granting the relief of interim injunction in his
favour.
4. Per contra, learned counsel for Respondent No.1-Plaintiff has
supported the impugned order of the Appellate Court by submitting that,
both, the Trial Court and the Appellate Court had, after properly
considering the entire material produced on record by both the parties,
given the findings on the factual aspects and hence, the discretion
exercised by the Trial Court being just, legal and correct and it is further
confirmed in the Appeal also, this Court should refrain itself from
interfering in the said discretion.
5. On merits, learned counsel for Respondent No.1-Plaintiff has relied
upon the letter dated 23rd December 1988 issued by Respondent
No.2/Defendant No.1/Original Owner informing Respondent No.1-
Plaintiff that the suit land is in his possession as a tenant. He further
relied upon the letter dated 28th July 2011 issued by Respondent No.2-
Original Owner to that effect. Thus, according to learned counsel for
Respondent No.1-Plaintiff, there being sufficient evidence on record,
which is properly appreciated by both the Courts below and sans any
evidence proving that possession of Respondent No.1-Plaintiff was
actually taken and handed over either to Respondent No.2-Defendant
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No.1 or to the Petitioners i.e. Defendant Nos.2 and 3, it has to be held
that Respondent No.1-Plaintiff continues to remain in possession of the
suit land and, therefore, the impugned order passed by the Trial Court
and confirmed by the Appellate Court need not be disturbed.
6. Perusal of the impugned order passed by the District Appellate
Court goes to show that the title of the suit land is not disputed. Initially,
it was with Defendant No.1 and now he has sold it by a registered Sale
Deed to Defendant Nos.2 and 3. It may be true that, in the registered
Sale Deed, there is an averment to the effect that Defendant No.1 has
handed over possession of the suit land to Defendant Nos.2 and 3;
however, that cannot be sufficient unless it is corroborated by other
material on record; especially, in the light of the letter dated 23 rd
December 1988 and the letter dated 28 th July 2011 issued by Defendant
No.1 himself to the Plaintiff, categorically stating that Respondent No.1-
Plaintiff is in possession of the suit land. There is not a single document
produced on record by any of the Defendants to show that possession of
the suit land was taken over from the Plaintiff by Defendant No.1, or, in
the tenancy proceedings, Respondent No.1-Plaintiff was evicted from
possession of the suit land. It may be true that, in the tenancy
proceedings, status of Respondent No.1-Plaintiff as a 'tenant' is not
proved upto the Tenancy Appeal, but the fact remains that now the
proceedings are pending before the Maharashtra Revenue Tribunal.
Moreover, in these proceedings, for the relief of interim injunction, the
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Court is concerned more with the aspect and factum of possession, than
that of the status and the factum of possession clearly goes in favour of
Respondent No.1-Plaintiff.
7. In view of these two letters dated 23rd December 1988 and 28th
July 2011 and in the absence of any single document to show that the
possession of the suit land was actually taken over from Respondent
No.1-Plaintiff and handed over to either Respondent No.2-Defendant
No.1 or to the Petitioners i.e. Defendant Nos.2 and 3, the proceedings,
which are initiated under Sections 145 or 146 of the Cr.P.C. cannot have
any bearing as such to hold that Respondent No.1-Plaintiff is not in
actual possession of the suit land, but it is the Petitioners who are in
possession of the suit land.
8. Whatever it may be, at present, the Court Receiver is in actual
possession of the suit land and that is subject to the decision in the civil
proceedings. In such situation, the factual finding recorded by both the
Courts below and which is based on the documentary evidence on
record, which is of a clinching nature, this Court does not find that any
reasons are made out to disturb the said finding or to interfere in the
discretion exercised by the Courts below. The Writ Petition, therefore,
holds no merits and hence stands dismissed.
9. Rule is discharged.
[DR. SHALINI PHANSALKAR-JOSHI, J.]
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