Sajjan Baburao Patil vs Bhimrao Baburao Jadhav And Anr
2017 Latest Caselaw 9854 Bom

       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CIVIL APPELLATE JURISDICTION

                      WRIT PETITION NO. 13400 OF 2017


Sajjan Baburao Patil                                  ]
Age Adult, Occ. Agriculture,                          ]
R/o. Warananagar, Kodoli,                             ]
Taluka Panhala, District Kolhapur                     ] ... Petitioner
           V/s.
1. Bhimrao Baburao Jadhav                             ]
Age Adult, Occ. Agriculture,                          ]
R/o. Kodoli (Chavan Galli),                           ]
Taluka Panhala, District Kolhapur                     ]
                                                      ]
2. Sampat Baburao Patil                               ]
Age Adult, Occ. Agriculture,                          ]
R/o. Kodoli, Near Chavdi Office,                      ]
Taluka Panhala, District Kolhapur                     ] ... Respondents


 Mr.Chetan G. Patil for the Petitioner.
 Mr.Kedar P. Lad for the Respondents.


            CORAM : DR.SHALINI PHANSALKAR-JOSHI, J.

            DATE            : 20 th DECEMBER, 2017.


ORAL JUDGMENT :


1]          Rule. Rule made returnable forthwith. Heard finally with

consent of learned counsel for both the parties.

2] By this petition, filed under Article 227 of the

Constitution of India, the Petitioner is challenging the order dated

26th October, 2017 passed by District Judge-2, Kolhapur, thereby

allowing Miscellaneous Civil Appeal No.155 of 2017 preferred by

the Respondents herein, challenging the order of temporary

injunction granted by the Court of Joint Civil Judge, Junior

Division, Panhala, vide its order dated 29th April, 2017 passed

below Exhibit-5 in R.C.S. No.32 of 2015, thereby restraining the

Respondents from causing obstruction to the possession of the

Petitioner over the suit property till decision of the suit.

3] For the sake of convenience, in this Writ Petition also,

the parties are referred to by their original nomenclature as

'Plaintiff' and 'Defendant'.

4] Brief facts of the petition are to the effect that, the

Plaintiff has filed a suit simpliciter for injunction in respect of the

agricultural land bearing Gat No.2498, totally ad-measuring 1-H

32-R; out of which, he claimed to be in possession of his share ad-

measuring 31.5 R with four boundaries, as given in the plaint.

According to his case, the said property has fallen to his share, in

pursuance of the Memorandum of Partition dated 22nd July

2003, executed by his father between him and his three sons.

5] By virtue of this Memorandum of Partition, separate

portions of the land were allotted to each of them and,

accordingly, eastern side portion of the land, admeasuring 31.5 R,

out of the Gat No.2498, was alloted to Defendant No.2, who is

brother of the Plaintiff. However, as the Memorandum of Partition

was not registered, separate entries thereof were not made in

'7/12 Extract' of the agricultural land. According to the Plaintiff,

all the parties had acted upon the Memorandum of Partition and

each one was dealing with the property alloted to his share.

Thereafter, Defendant No.2 has, on the pretext that he wanted to

get loan from the Bank, has got executed the Sale-Deed, bearing

No.2757 of 2014, from his father, of some portion of the said land,

which was allotted in his share. On the basis of the said Sale-

Deed, he executed Sale-Deed, bearing No.186 of 2015, of the same

land of Defendant No.1. However, in the said Sale-Deed, he has

mentioned boundaries of the property alloted to his share

differently and those boundaries are of the land alloted to the

share of the Plaintiff. The Plaintiff is, therefore, having

apprehension that, on the basis of those mis-description of the

boundaries in the Sale-Deed executed by Defendant No.2 in favour

of Defendant No.1, both of them will cause obstruction to his

possession and hence, he is constrained to file the suit for

injunction with an application for temporary injunction

restraining Defendant Nos.1 and 2 from causing obstruction to

his possession.

6] Defendant Nos.1 and 2 resisted the application vide their

Written Statement at Exhibit-19 contending, inter-alia, that, no

such Memorandum of Partition was actually executed and acted

upon. It was contended that, there was no such partition effected

till date and whatever the Memorandum of Partition is produced

on record is not legal, correct and valid. Further it was submitted

that, as the Memorandum of Partition was never acted upon, the

entries were also not mutated accordingly in the '7/12 Extract' of

the agricultural land. According to Defendant Nos.1 and 2, the

land, which came to the share of Defendant No.2, on the basis of

the oral partition, is sold by Defendant No.2 in the name of

Defendant No.1 and hence, the Plaintiff cannot raise any

grievance about the same.

7] In support of their respective contentions, learned

counsel for both the parties have relied upon their documentary

evidence and on appreciation of it, the trial Court was pleased to

hold that, the Memorandum of Partition dated 22nd July, 2003

appears to be executed and acted upon, as Defendant No.2 too,

has, by relying on the same Memorandum of Partition, already

executed Sale-Deed of his share in the joint family property in

favour of wife of the Plaintiff. The original Sale-Deed to that effect

was also produced on record. The trial Court has further held

that, the recitals in the Sale-Deed executed by Defendant No.2 in

favour of Defendant No.1 clearly reveal that, he has, by the said

Sale-Deed, sold the very portion of the land, which he has

purchased from his father by Sale-Deed No.2757 of 2014 and

hence, it is apparent that, not only the Memorandum of Partition

was acted upon, but the property, which is sold by Defendant No.2

to Defendant No.1, was the same, which was given to his share.

However, Defendant No.2 has mentioned the wrong boundaries

thereof in the Sale-Deed executed in favour of Defendant No.1 and

that does not disprove the possession of the Plaintiff over the suit

land, which was allotted to his share by the Memorandum of

Partition. Accordingly, the trial Court held the Plaintiff to be in

possession of the suit property and restrained the Defendants

from causing obstruction to his possession.

8] When the matter was taken before the Appellate Court,

the Appellate Court has re-appreciated the entire material on

record and held that, prima-facie, there is no material to show

that the Memorandum of Partition was executed or acted upon. It

was further held that, Defendant No.2 has raised cloud of

suspicion over the said execution of Memorandum of Partition

and in such situation, when the title of the Plaintiff is in dispute,

the Plaintiff cannot become entitled to get the relief of temporary

injunction. Accordingly, the Appellate Court allowed the appeal

and set-aside the order of temporary injunction passed by the

trial Court.

9] While challenging this impugned order of the Appellate

Court, the submissions advanced by learned counsel for the

Petitioner are two fold: the first submission is that, the Appellate

Court has acted beyond the scope of its jurisdiction and, secondly,

on merits, the Plaintiff has, prima-facie, proved his possession

over the suit property and also the fact that the Memorandum of

Partition was executed and acted upon. Therefore, the Trial Court

has rightly granted the relief of temporary injunction and the said

relief needs to be restored by this Court.

10] Per contra, learned counsel for the Respondents has

supported the said impugned order of the Appellate Court by

relying upon the reasoning given by the Appellate Court and

submitting that, when the trial Court has mis-directed itself by

not appreciating properly the material produced on record, it was

the duty of the Appellate Court to re-appreciate the same, which

Appellate Court has done in this case, and hence, no interference

is warranted in the impugned order of the Appellate Court.

11] As regards the scope of the Appellate Court in the appeal

preferred against the order of temporary injunction, which is of a

discretionary nature, learned counsel for the Plaintiff has rightly

placed reliance on the judgment of the Apex Court in the case of

Wander Ltd. & Anr. vs. Antox India P. Ltd., 1990 (supp.) SCC 727 .

In paragraph Nos.13 and 14 of its judgment, Hon'ble Supreme

Court has considered limitation on the power of the Appellate

Court to substitute its own discretion in an appeal preferred

against a discretionary order. It was held that,

"In such appeals, the Appellate Court will not interfere with the exercise of discretion of the Court of first instance and substitute its own discretion, except where the discretion has been shown to have been exercised arbitrarily, capriciously or perversely, or, where the Court had ignored the settled principles of law regulating grant or refusal of inter-locutory injunction. An appeal against the exercise of discretion is said to be an appeal on principle and therefore, the Appellate Court will not re- assess the material and seek to reach a conclusion different from the one reached by the Court below; if the one reached by the Court below is the one reached by that Court was reasonably possible on the material before it. The Appellate Court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage, it would have come to the contrary conclusion. If the discretion has been exercised by the trial

Court reasonably and in a judicial manner, the fact that the Appellate Court would have taken a different view, may not justify interference with the trial Court's exercise of discretion."

12] Thus, the law crystallized by the judgment of the Hon'ble

Supreme Court is that, the power of the Appellate Court of

interference, while dealing with the discretionary order passed by

the trial Court, is limited. In the present case, hence, one has to

consider whether the Appellate Court has exceeded its limitation

by re-assessing the material on record. For that purpose, it has to

be considered whether the conclusion arrived at by the trial Court

was reasonably possible on the matter placed before it.

13] In this case, the Plaintiff has come before the Court with

a specific case that his father had executed a Memorandum of

Partition on 22nd July 2003 and in that partition, the joint family

property was divided by the father amongst himself and his three

sons. The area ad-measuring 31.5 R, out of Gat No.2498, with the

boundaries, as mentioned therein, was to the share of the

Plaintiffis, which is as follows;

 On the Eastern Side - Share of Sampat Baburao Patil;

 On the Western Side - Government Road (Panand);

 On the Southern Side - Land of Bhujangrao Baburao Patil in Gat No.2498;

 On the Northern Side - Land of Laxman Gaikwad and Shiralkar.

14] Whereas, the land given to the share of Defendant No.2

is described in the said Memorandum of Partition as follows;

 On the Eastern Side - Land of Shri Balaso Patil (Khetarpure);

 On the Western Side - Share of Shri Sajjan and Bhujingrao Baburao Patil;

 On the Southern Side - Land of Shri Vilas Maruti Bavane;

 On the Northern Side - Land of Shri Shivaji Dattatray Patil.

15] Thus, out of Gat No.2498, an equal area, admeasuring

31.5 R, is allotted, each, to the Plaintiff and Defendant No.2. The

share of the Plaintiff is on the Western Side to share of Defendant

No.2.

16] It is pertinent to note that, thereafter, by getting the the

Sale-Deed from his father, on the basis of this Memorandum of

Partition, Defendant No.1 had purchased the land, which was

alloted to his share in the said Memorandum of Partition. Now by

executing another Sale-Deed, he has sold the land to Defendant

No.1. The recitals in the Sale-Deed executed by Defendant No.2 in

favour of Defendant No.1 are very clear to that effect. In the said

Sale-Deed, Defendant No.2 has categorically stated that, the land

which he has purchased on the basis of the Sale-Deed

No.2757/2014 is the same, which he is selling to Defendant No.2.

However, while doing so, he has mentioned different boundaries

and these boundaries of the land have gone to the share of the

Plaintiff. It is clearly a mischief played by Defendant No.2 and

thereby he has created an apprehension in the mind of the

Plaintiff that his possession in the suit land allotted to his share

may be disturbed. Naturally, in such situation, the Plaintiff was

constrained to seek the relief of temporary injunction, which trial

Court has rightly granted in his favour. The impugned order

passed by the trial Court clearly reveals that the trial Court has

considered the boundaries of the land allotted to the share of the

Petitioner and Defendant No.2. The trial Court has also

considered the boundaries of the land, which were mentioned in

the Sale-Deed executed by Defendant No.2 in favour of Defendant

No.1. The trial Court also considered that, the Memorandum of

Partition was acted upon. Defendant No.2 himself has sold the

land allotted to his share by Memorandum of Partition to the wife

of the Plaintiff and Mutation Entry No.7237 has been effected

accordingly. There is also one more Sale-Deed executed by the

father of the Plaintiff and Defendant No.2 in favour of Plaintiff's

wife in respect of the land allotted to his share by the

Memorandum of Partition.

17] Thus, some portion of the land, which was allotted to the

share of Defendant No.2, he has sold it to the Plaintiff's wife,

thereby indicating that he has acted upon the Memorandum of

Partition. Not only he, but, even the father of Defendant No.2 had

acted upon the Memorandum of Partition, as he has also sold the

land allotted to his share in the name of the Plaintiff's wife. In

such situation, there hardly remains any substance in the

contention that the Memorandum of Partition was never acted

upon. The trial Court has considered this aspect also in its proper

perspective. Even the averments made in the Written Statement

filed on behalf of Respondent Nos.1 and 2 show that they have

admitted the oral partition and thereby the separate shares in the

suit land.

18] Having regard to all these facts and the material on

record, the trial Court has, thus, rightly granted the relief of

interim injunction. In the facts of this case, when the conclusion

arrived at by the trial Court, considering the material placed

before it being reasonably possible, it was not proper on the part

of the Appellate Court to disturb the said order and, that too, only

on the count that there is some doubt about execution of the

Memorandum of Partition i.e. whether it was acted upon or not?

According to learned counsel for the Defendant, when the title of

the Plaintiff over the suit property is under cloud of suspicion, the

Appellate Court has rightly relied upon the judgment of the Apex

Court in the case of Anathula Sudhakar vs. P. Buchi Reddy (Dead)

by LRs. & Ors., (2008) 4 SCC 594, wherein it was held that,

"Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction."

19] However, this Judgment cannot be made applicable in

the present case, as, in this case, no one is disputing the title of

the Plaintiff over the suit land. Even Defendant Nos.1 and 2 have

not stated that the Plaintiff is not the owner and in possession of

the land, which is allotted to his share. However, what they are

doing ingenuously is, quoting different boundaries in the said

Sale-Deed. When the very recitals in the Sale-Deed executed by

Defendant No.2 in favour of Defendant No.1 show that, it was in

respect of the share which was allotted to Defendant No.2 and

sold to him by father and not of the share allotted to the Plaintiff,

the Plaintiff's possession in the suit land cannot be doubted.

20] Thus, it has to be held that, the Appellate Court has mis-

directed itself and entered into the issues which were not

germane to the dispute and unnecessarily interferred in the

finding recorded by the trial Court, which was based on the

material produced on record before it. The impugned order

passed by the Appellate Court, therefore, cannot stand, on

scrutiny, and hence, it is liable to be quashed and set-aside.

21] Accordingly, the Writ Petition is allowed. The impugned

order passed by the Appellate Court, allowing the Miscellaneous

Civil Appeal No.155 of 2017, is quashed and set-aside.

22] As a result, the order of temporary injunction passed by

the trial Court below Exhibit-5 stands confirmed.

23]         Rule is made absolute in the above terms.



                                [DR.SHALINI PHANSALKAR-JOSHI, J.]