Bombay High Court

Mangala Santosh Shivnekar And ... vs Bhagwat Shankar Shukla on 4 July, 2017

Bench: S.P. Deshmukh

  (Judgment)                               (1)               W.P. No. 07754 & 07755 of 2017




     IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
          AURANGABAD BENCH, AT AURANGABAD.

                        Writ Petition No. 07754 of 2017
                                       With
                        Writ Petition No. 07755 of 2017

                                                           District : Jalgaon




1. Mangala Santosh Shivnekar,
   Age : 42 years,
   Occupation : Agriculture.

2. Santosh Lalchand Shivnekar,
   Age : 48 years,
   Occupation : Service.

   Both R/o. 28, Krushi Nagar,
   Bhadgaon Road, Pachora,
   Taluka Pachora,                                    .. Petitioners
   District Jalgaon.                                     (Original defendants)

               versus

Bhagwat s/o. Shankar Shukla,
Age : 56 years,
Occupation : Agriculture,
R/o. Sangvi, Taluka Pachora,                          .. Respondent
District Jalgaon.                                        (Original plaintiff)

                                        ...........

                           Parties to both petitions are same.

                                        *******

               Mr. R.N. Dhorde, Senior Advocate, instructed by
               Mr. V.R. Dhorde, Advocate, for petitioners.

               Mr. S.P. Brahme, Advocate, with
               Mr. Bipinchandra K. Patil, Advocate, for the respondent.

                                        *******

                                     CORAM : SUNIL P. DESHMUKH, J.

DATE : 04TH JULY 2017

(Judgment) (2) W.P. No. 07754 & 07755 of 2017

ORAL JUDGMENT :

01. Rule. Rule made returnable forthwith. Heard Mr. R.N.

Dhorde, learned senior counsel appearing for petitioners and Mr. S.P.

Brahme, learned counsel appearing for the respondent, by consent

finally.

02. Petitioners are original defendants no.01 and 02 in

Regular Civil Suit No. 082 of 2016 instituted by present respondent -

original plaintiff seeking decree of perpetual injunction in respect of

land bearing Gut No. 104 admeasuring 05 Hectare, 48 Are, situated

at Naiknagar, Taluka Pachora, District Jalgaon.

03. Petitioners claim themselves to be Watandars of

aforesaid land and purport to assert claim for possession over suit

property. Mr. Dhorde, learned Senior Counsel, during the course of

his submissions, has referred to various stages as referred in the

synopsis. He refers to that around 1946-47, father of plaintiff -

respondent, namely, Shankar Shukla, claimed tenancy over suit land.

Around 1967, mutation entry no.1567 had been effected recording

particularly that provisions of section 32G of the Bombay Tenancy &

Agricultural Lands Act, 1948 [Now "Maharashtra Tenancy &

Agricultural Lands Act, 1948 - hereinafter referred to as "Tenancy Act"],

are not applicable, the land being Watan Inam land. The mutation

(Judgment) (3) W.P. No. 07754 & 07755 of 2017

entry had been effected referring to re-grant of the land to original

landlords by the State Government.

04. Learned senior advocate refers to that father of plaintiff

had initiated Tenancy Case No. 07 of 1987 before Tahsildar, Pachora,

purportedly pursuant to Section 32G of the Tenancy Act, seeking

declaration of ownership. Said proceedings has resulted into

dismissal due to non-prosecution.

05. Around 2000 the respondent - plaintiff claiming to be in

possession of suit land after death of his father preferred Tenancy

Case No. 02 of 2000 also pursuant to section 32G of the Tenancy

Act. Around the same time, landlords had preferred Tenancy Case

No. 01 of 2000 pursuant to Section 70B of the Tenancy Act

06. The tenancy proceedings initiated by the respondent -

plaintiff had been allowed whereas the one filed by landlords had

been dismissed.

07. Landlords had preferred appeal against the order of

Tahsildar in Tenancy Case No. 02 of 2000 which was allowed by the

Sub-Divisional Officer. A revision preferred against the Sub-

Divisional Officer's order before the Maharashtra Revenue Tribunal,

at the instance of the respondent - plaintiff, had resulted in failure

(Judgment) (4) W.P. No. 07754 & 07755 of 2017

and subsequent writ petition against the order of the Maharashtra

Revenue Tribunal had been dismissed by this court with liberty.

08. Thereafter, the respondent - plaintiff had filed application

before the Tahsildar for delay condonation in Tenancy Case No. 01 of

1987. Said application was rejected around September, 2016.

Learned counsel for respondent purports to submit that proceeding

against aforesaid is pending.

09. While these are proceedings on one hand, on the other,

petitioners purchased the suit land under different registered sale

deeds, all in 2015 and claim to have been put in possession under

the transactions.

10. Learned senior advocate submits that, in 2011, landlords

had filed proceedings for possession pursuant to sections 59 and 242

of the Maharashtra Land Revenue Code, 1966, against the

respondent - plaintiff. Said proceedings were allowed and the

Tahsildar passed order on 23-11-2016 directing handing over of

possession to landlords and purchasers. An appeal against said

order before Sub-Divisional Officer, at the instance of plaintiff -

respondent had resulted into failure.

11. In February, 2017 petitioners approached Tahsildar for

(Judgment) (5) W.P. No. 07754 & 07755 of 2017

execution of order directing to give possession, pursuant to which

the Tahsildar on 06.03.2017 had issued directions to put the

petitioners in possession of the suit land. Writ petition no. 04337 of

2017 had been preferred before this court by the respondent -

plaintiff which had been withdrawn with liberty to avail of alternate

remedy. On 05-04-2017, possession of the land had been delivered

to petitioners under a Panchanama and by executing a possession

receipt.

12. Learned senior advocate submits that in the meanwhile,

respondent - plaintiff instituted Regular Civil Suit bearing No. 082 of

2016 for injunction and along with that, the plaintiff had filed

application - Exhibit 06 for temporary injunction. In response to

that, petitioners had filed a written statement and also made a

counter claim for injunction along with application - Exhibit 21 for

temporary injunction. Learned Civil Judge (J.D.), Pachora, under his

order dated 28-11-2016, had rejected both applications Exhibit 06

and Exhibit 21 refusing temporary injunction to the parties.

13. Petitioners preferred Misc. Civil Appeal bearing No. 070 of

2016 against the rejection of application - Exhibit 21 and the plaintiff

- respondent preferred Misc. Civil Appeal bearing No. 071 of 2016

against dismissal of application - Exhibit 06. Learned senior

advocate submits that under order dated 15-04-2017, the appellate

(Judgment) (6) W.P. No. 07754 & 07755 of 2017

court dismissed the appeal of petitioners and allowed that of the

respondent - plaintiff.

14. Learned senior advocate vehemently submits that while

considering matter for temporary injunction, situation as on the date

of suit ought to have been examined by appellate court and appeal

preferred by petitioners - defendants should have been allowed and

appeal preferred by the respondent - plaintiff should have been

dismissed. He submits that record would bear as on the date of suit,

the respondent - plaintiff cannot be said to be in possession of suit

property enabling him to have temporary injunction. According to

him, on the date of suit, petitioners were in possession which can be

seen from the orders passed by the revenue authorities. He submits

that there has been specific order in respect of agricultural year

2015-16 wherein claim made by the plaintiff - respondent over

cultivation has been rejected by Tahsildar, referring to that, no

proper procedure was followed therefor. He submits that recitals in

the sale deeds do depict delivery of possession to petitioners by their

vendor. This coupled with, reinforcement by subsequent events

whereunder pursuant to directions issued in the proceedings for

possession, possession has been given to petitioners.

15. Learned senior advocate submits that petitioners were

put in possession actually pursuant to the sale deeds, whereas so far

(Judgment) (7) W.P. No. 07754 & 07755 of 2017

as respondent - plaintiff is concerned, after dismissal of their

proceedings before Maharashtra Revenue Tribunal against the order

granting possession to defendants - vendors, proceedings preferred

by the plaintiff are pending in this court. He submits that in the

proceedings for possession, petitioners were successful wherein

there has been order for possession and so far as revenue entries

are concerned, the respondent - plaintiff has failed. Thus, the

respondent - plaintiff is not in possession of the suit land as on the

date of suit in the year 2015-16. The suit has been instituted in the

year 2016. He submits that appellate court, disregarding all this

background, has passed an order on assumptions and presumptions

and conjectures and surmises. The case of petitioners about

possession gets fortification from proceedings herein before referred

to and the contemporaneous record as has been subsisting since

2015. In the face of aforesaid situation, he submits that

observations of appellate court, that defendants are not coming with

clean hands, is damaging observation, quite away from record. He

submits that order of appellate court deserves to be set aside. He,

therefore, submits that both the writ petitions be allowed and

temporary injunction application filed by the respondent - plaintiff be

rejected and that of petitioners - defendants be allowed.

16. Countering aforesaid submissions of learned senior

advocate appearing on behalf of petitioners, Mr. Brahme, learned

(Judgment) (8) W.P. No. 07754 & 07755 of 2017

counsel for the respondent - plaintiff, submits that earlier failure of

tenancy proceedings has not been a decision on merits and the later

one is being revived pursuant to liberty granted by the High Court

and is yet pending. During all these years, the revenue record since

1945-46 onwards continuously bears that it is the plaintiff -

respondent's predecessor who has been in possession of the suit

land without interruption whatsoever till 2011-12. He submits that

petitioners were not in possession of the suit land, is an

acknowledged position borne out from record since petitioners'

predecessor had filed proceedings for possession in 2011 pursuant to

an order in certain proceedings. The proceedings for possession

initiated in 2011 had culminated into an order for possession in

2016.

17. Mr. Brahme purports to point out that whereas aforesaid

being the position, landlords - Watandars had indulged into various

nefarious activities, inter alia, executing sale deeds of suit land.

They entered into the transaction, taking different stand, while

agreement of sale was executed, it has been referred to that

permission was required and while sale deeds in the interregnum

had been executed hastily, referring to that no permission would be

required for transfer of suit land. While on one hand, proceedings

for possession were initiated in 2011, sale deeds were executed

containing recitals showing delivery of possession. He submits that

(Judgment) (9) W.P. No. 07754 & 07755 of 2017

there is no record whatsoever to show that the respondent - plaintiff

had been dispossessed by taking recourse to any due process of law.

He submits that instead of prosecuting proceedings for possession

initiated in 2011, petitioners tried to cause alteration in maintenance

of revenue record and caused hindrance while the respondent -

plaintiff had requested to take entries in the revenue record. He

submits that while suit has been instituted in 2016, the possession

receipt and the Panchanama of delivery of possession has been of

April, 2017, during the pendency of the suit. He submits that the

order passed by Tahsildar in respect of deleting respondent -

plaintiff's name from cultivation column and taking that of

defendants, is an order which is quite intriguing while the body of

the order shows that yet proper procedure for taking entry in

cultivation column is not followed. It is difficult to understand as to

how the operative order would direct to insert names of petitioners.

18. The entire record had been properly scanned by

appellate court. Despite such record, the trial court had been

hesitant to pass order. Appellate court has corrected the error and

has passed order. Order of appellate court does not require any

interference with by the high court. He submits that appellate court

has taken a decision which cannot be said to be away from the

record before the court and in such a case, just for the reason that

other view could have been possible, powers of this court may not be

(Judgment) (10) W.P. No. 07754 & 07755 of 2017

invoked. He, therefore, urges to dismiss the writ petitions.

19. While to some extent, initiation of proceedings on either

side and its results have not been disputed, it emerges that there is

no dispute so far as petitioners are concerned, about the suit land

being in possession of the respondent - plaintiff, at least till 2012-13

and preparation of revenue record thereafter appears to be in

dispute. The suit has been filed on 17-06-2016. It is further seen it

is undisputed position that in 2011, petitioners' predecessor had

moved pursuant to orders of re-grant for possession. The order of

possession had been passed in November, 2016 by the Tahsildar in

the proceedings for possession pursuant to re-grant. Appeal

therefrom at the instance of the respondent - plaintiff failed in

middle of December, 2016. Around February, 2017, petitioners had

filed application for execution of the order of possession and

thereafter on 05-04-2017, possession is shown to have been

delivered. Whereas, on the other hand, before that, sale deeds had

been executed showing delivery of possession to petitioners in 2015.

Revenue entries of 2013 have been kept vacant since some

proceedings had taken place before. In the circumstances, looking

at that, there is no reliable record so far as coming into possession of

petitioners - defendants no.01 and 02, during the course from 2012-

13 or for that matter in 2015-16 or before April 2017, the possession

would be required to be adjudged on the date of the suit looking at

(Judgment) (11) W.P. No. 07754 & 07755 of 2017

the facts and circumstances and possibility emanating therefrom

which appears to have been rightly done by appellate court as would

emerge from observations in paragraphs no.09 to 13 as well as

observations of trial court in paragraph 10 which are re-produced

herein below :-

Paragraphs no.09 to 13 of appellate court's order

09. The plaintiff has contended that the suit property is the tenancy land of which his father Shankar Ganesh Shukla was the tenant and cultivating the same since 1946-47. It is contended that on or about 25.11.1990 his father died and since then the plaintiff is in possession of the suit property being the legal heir and cultivating the suit property. He has placed on record the copies of 7/12 extracts of the suit property from the year 1941-42 onwards which show that the name of the father of the plaintiff namely Shankar Ganesh Shukla as cultivator of the suit property. It appears that in the year 2013 the name of the plaintiff has been discontinued as cultivator / possessor of the suit property. Mutation entries No.737, 738 and 1374 are filed on record, which shows that father of the plaintiff namely Shankar Ganesh Shukla was the tenant in the suit property. There are several proceedings as per the provisions of Tenancy Act before the Tenancy Authorities filed by the plaintiff.

Learned advocate for the plaintiff filed on record the copy of the order dated 26.08.2016 passed by the Hon'ble High Court in Criminal Application No. 4472 of 2016 and pointed out that though the proceeding was in regard to the grant of bail to the plaintiff and others, Hon'ble High Court has observed in Para No.11 that the documents annexed along with the application contains the record of right which shows that on 18.06.1947 father of the plaintiff Shankar

(Judgment) (12) W.P. No. 07754 & 07755 of 2017

Ganesh Shukla became protected tenant and there was litigation among the Deshmukh family and the present plaintiff.

10. It is the case of the defendants that they have purchased the portion of the suit property i.e. 0.3.3 Anewari from Ramrao Anandrao Deshmukh vide registered sale deed dated 24.08.2012 and accordingly mutation entry No.649 is effected. So also, another portion of the suit property 0.6.4 Anewari vide registered sale deed dated 29.12.2015 and mutation entry No.660 is effected on the basis of said two sale deeds, the defendants are claiming that they are in possession of the suit property. Learned advocate for the defendant submitted that the suit property is the Inam land which was given by the State for services rendered, therefore, Tenancy Act is not applicable. He placed reliance on the government resolution dated 09.07.2002. It is submitted that unless the person cultivated the suit land has authorisation, is a trespasser. It is submitted that it is nowhere shown that how plaintiff came as a protected tenant as pleaded in the plaint.

11. Learned advocate for the plaintiff has filed the copy of order dated 23.11.2016 passed by the learned Tahsildar, Pachora, as per the provisions of Section 59 and 242 of the Maharashtra Land Revenue Code and the copy caveat otice filed by the defendants which speaks about handing over of possession by the plaintiff to the defendants and submitted that the plaintiff is the defacto possessor of the suit property.

12. Learned advocate for the defendants vide list documents dated 06.04.2017 filed on record the copy of Writ Petition No. 4337 of 2017 and order dated 03.04.2017 passed therein by which the plaintiff sought withdrawal of the said writ petition. He has also filed on record the order dated 06.03.2017 passed by the Tahsildar, Pachora, bearing No. Kul.Ka/Ka.Vi./72/2017 and the notice dated 20.03.2017

(Judgment) (13) W.P. No. 07754 & 07755 of 2017

issued by the Mandal Adhikari, Varkhedi, Taluka Pachora, Dist. Jalgaon, regarding giving possession of the suit property to the defendants. He has placed on record the copy of Taba Pavati dated 05.04.2017 and panchanama dated 05.04.2017 and contended that the defendants had obtained the possession of the suit property from the plaintiff.

13. The defendants in their written statement-cum-counter claim initially contended that the suit property is in their possession and they placed on record the copies of sale deed of purchase of portions of suit property from the original owner. Now the defendant No.1 is contending that she has obtained the possession of the suit property from the plaintiff as per the Taba Pavati and the panchanama filed on record. In such situation, the defendants are not coming with the clean hands. Moreover, the registered sale deeds placed on record do not pertain to the entire suit property but of portion of the suit property. The revenue record reveals that the name of the father of the plaintiff is mutated as a protected tenant since last several years. There is nothing on record to show on what basis his name is discontinued after year 2013. Filing of the Taba Pavati and the panchanama at the fag end when the appeals are kept for passing of judgment, itself reveals that the defendants were not in the possession of the suit property at any point of time. In such situation, the plaintiff has made out the prima facie case, whereas the defendants have failed to prove their prima facie case. The defendants themselves have filed on record the order dated 06.03.2017 by which order of grant of police Bandobasta for taking the possession from the plaintiff is passed by the Tahsildar, Pachora. In regard to the Taba Pavati dated 05.04.2017 and the panchanama dated 05.04.2017 said documents are disputed by the plaintiff vide his say dated 06.04.2017 below Exh.55. Though on the basis of Taba Pavati and panchanama, the defendants are claiming to have obtained the possession of entire suit

(Judgment) (14) W.P. No. 07754 & 07755 of 2017

property admeasuring 5-Hector 31-Ares, however, it is not the case of defendant No.1that she has purchased the entire suit property. She has purchased the portions of the suit property as per the sale deeds placed on record. In such situation, the contention of defendants cannot be accepted and the balance of convenience tilts in favour of the plaintiff and there would be definitely irreparable loss to the plaintiff if injunction is refused to him. Therefore, I answer Points No.1 to 3 accordingly.

Paragraph 10 of the order passed by trial court

10. The main contention advanced on behalf of plaintiff is that he is protected tenant of the suit land and is in possession of it. The plaintiff has filed a bulk of revenue documents; prima facie perusal of which clearly shows that the suit land was initially in possession of the protected tenant i.e. father of plaintiff namely Shankar Ganesh Shukla till 1990-1991. Plaintiff has submitted a certified copy of 7/12 extract of suit land which is for the period of 1995-1996 to 2007- 2008; which prima facie shows the name of plaintiff as cultivator after his deceased father Shankar Shukla. Not only this but the plaintiff also produced on record a certified copy of 7/12 extract of the suit land which is for the year 2008-2009 to 2015-2016. Further perusal of this 7/12 extract also depicts name of several persons as landlords of the suit land who are not made parties to the suit. Perusal of this 7/12 extract, prima facie, reveals that plaintiff was in possession of the suit land during the period of 2009-2010 to 2011-2012 and by order of Tahsildar in Pik-Pahani SR Case No.11/2012 dated 25-09-2013 the name of the plaintiff has been discontinued as cultivator / possessor of the suit land. Thus the name of the plaintiff does not find place in the cultivation / possession column of the suit land from the year 2012-2013 onwards.

(Judgment) (15) W.P. No. 07754 & 07755 of 2017

20. It appears that by preponderance, judgment by the

appellate court is not liable to be faulted with and it cannot be said

facts and circumstances would require this Court to cause

interference with the order of the appellate court.

21. Writ petitions, in aforesaid facts and circumstances,

stand dismissed. Rule stands discharged. There shall be no order as

to costs.

22. However, looking at the nature of dispute, it would be

expedient that trial court proceeds with the suit expeditiously and

dispose of the same preferably within twelve months from the date

of receipt of writ of this order.