Namdev Maroti Kabade vs Mayur Jaynarayan Harkut
2017 Latest Caselaw 4028 Bom

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 drp
         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                    BENCH AT AURANGABAD

                     WRIT PETITION NO.7788 OF 2017

 Namdev Maroti Kabade                                           PETITIONER
 Age - 59 years, Occ - Agriculture
 R/o Kumbharwadi, Taluka - Georai,
 District - Beed

          VERSUS

 Dr. Mayur s/o Jaynarayan Harkut                              RESPONDENT
 Age - 31 years, Occ - Medical Practitioner
 and Agriculture R/o Madalmohi,
 Taluka - Georai, District - Beed

                                .......

Mr. V. D. Salunke, Advocate for the petitioner Mr. Dhiraj R. Jethliya, Advocate for the respondent .......

[CORAM : SUNIL P. DESHMUKH, J.]

DATE : 5th JULY, 2017

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard learned

advocates for the parties finally by consent.

2. Petitioner - plaintiff being unsuccessful on two occasions to

secure temporary injunction before trial and appellate courts, as

the courts have turned down his request, is before this court.

3. The petitioner - plaintiff has instituted proceedings seeking

declaration and perpetual injunction bearing Regular Civil Suit

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No. 361 of 2015 claiming disturbance to his possession over

disputed property after purchase of land gut No. 103 by

defendant No. 1. Along with the plaint, an application for

temporary injunction had been moved, since there had been

immediate threat to his possession over 56 Are disputed land. Ad

interim injunction had been granted initially, however,

subsequently, the same came to be vacated by trial court under

order dated 13th October, 2015, rejecting temporary injunction

application.

4. The matter was taken up by the petitioner in Miscellaneous

Civil Appeal No. 108 of 2015 before appellate court. However,

under order dated 15th April, 2017, the appeal came to be

rejected and as such, present writ petition.

5. Learned advocate Mr. Salunke appearing for the petitioner,

submits that the courts hitherto have been in error in getting

swayed away by the consolidation record rather than material

placed before them showing possession of plaintiff over disputed

property. Learned advocate contends that his possession over

disputed property is from a long time from even before

consolidation had taken place. He submits that even preparation

of consolidation record had not been in accordance with the

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material placed before the consolidation authorities. He

contends, despite that being referred to by trial court, the court

has not given the same its due. He contends that over and above

this, defendant No. 1 had after the property had been purchased

caused at least three measurements of Gut No. 103. While two

earlier measurements did not show the portion occupied by the

petitioner, yet, last of the measurements does show that the

petitioner being in occupation of 56 Are land from gut No. 103.

He, therefore, submits that at the stage of interim injunction,

prima facie burden has been discharged by the plaintiff that he is

in possession of suit property.

6. He submits, the petitioner - plaintiff traces his origin of

possession over area of 56 Are disputed land to old lands survey

No. 280 and 281 comprising 3 Hectare, 84 Are. Plaintiff contends

that he had been owner of 3 Hectare, 84 Are land comprising

then lands survey No. 280 and 281, however, upon application of

consolidation scheme, area owned by him is shown to have been

reduced to 3 Hectare, 28 Are, forming gut No. 102. He claims

that it did not affect plaintiff's actual possession and he

continued to be in possession of his erstwhile holding of 3

Hectare, 84 Are land.

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7. While this has been the position from long time, according

to petitioner, adjoining land holder whose area is shown to have

grown by 56 Are upon application of consolidation scheme to 2

Hectare, 42 Are comprising gut No. 103, had purportedly sold

whole of Gut No. 103 to present respondent under a registered

sale deed dated 6th March, 2013. The property came to be sold

to defendant No. 1 by defendant No. 2 taking disadvantage of

consolidation record. Yet, according to plaintiff actual physical

possession of the plaintiff had never been disturbed.

8. Countering aforesaid submissions, Mr. Jethliya, learned

advocate appearing on behalf of the respondent-defendant,

submits that long standing consolidation record is testimony of

the fact that petitioner - plaintiff cannot lay claim to ownership

and possession to any portion in land Gut No. 103 admeasuring

2 Hectare, 42 Are. He submits that the land had been purchased

after taking into account relevant record. Claim of the petitioner-

plaintiff about him being in possession of the disputed property

is illegitimate, improper and illegal. The record does not bear

anywhere that the plaintiff can be said to be in possession of

disputed land at any point of time. He submits that the last

measurement map is of little relevance and consequence for, the

same does not depict correct position and as rightly considered

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by trial court, it does not have any presumptive value, although

prepared by concerned authorities. It is well settled that civil

courts are not supposed to go beyond and consider veracity and

efficacy of consolidation order and the record. He further adverts

to that as yet consolidation record has been intact.

9. He submits, while revenue as well as consolidation record

shows plaintiff to be in possession of only 3 Hectare, 28 Are

land, plaintiff's claim to possession of 3 Hectare, 84 Are land is

superfluous, unreal and untenable. He submits that there is no

evidence by the plaintiff showing him to be in possession of

disputed portion of land and is simply relying on the

measurement map. In the circumstances, two courts hitherto

have rightly appreciated the matter in controversy in its proper

perspective and have come to a right conclusion.

10. He goes on to submit that even otherwise this court should

dissuade itself from disturbing orders having regard to

conclusions under paragraph No.38 by the Supreme Court in its

judgment in the case of "Surya Dev Rai V/s Ram Chander Rai and

Others" reported in (2003) 6 SCC 675. Supervisory powers are to be

exercised to keep subordinate courts within bounds of their

jurisdiction and when subordinate court has assumed jurisdiction

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which it does not have and / or has failed to exercise jurisdiction

which it has or where there is failure of justice or grave injustice

is caused. He further refers to clause No. 7 of paragraph No. 38

of the same judgment contending that the supervisory

jurisdiction is to be exercised sparingly and only in appropriate

case. He submits that the present matter is not such a case

wherein it can be said that there have been any errors

committed, which are, manifest or are relatable to jurisdiction of

courts. He submits, both the courts have concurrently held that

the plaintiff does not have any prima facie case nor balance of

convenience lies in his favour or for that matter irreparable loss

would be caused to him.

11. He further refers to a decision of the Supreme Court in the

case of "Maria Margarida Sequeira Fernandes and Others V/s Erasmo Jack

De Sequeira" reported in (2012) 5 SCC 370 and refers to paragraph

No. 80 thereof, in turn which refers to a decision of Delhi high

court in "Thomas Cook (India) Ltd., V/s Hotel Imperial" reported in (2006)

88 DRJ 545 wherein terms "due process" or "due course" have

been discussed and paragraph No. 83 of said judgment deals

with gravity of granting of interim injunction.

12. Learned counsel for respondents, therefore, urges this

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court not to meddle with concurrent findings rendered by courts

hitherto in respect of prima facie case, balance of convenience

and irreparable loss. He submits that defendant No. 1 has

purchased the property for value without notice. He has been put

in possession of the property under a registered deed and there

had been no objection thus far to the transaction. He, thus urges

this court to take overall view of the matter and reject the writ

petition.

13. While arguments are so advanced on either side, plaintiff

traces his possession to a time even before consolidation scheme

had been applied. Despite consolidation record, petitioner

appears to be in possession, which to quite some extent is borne

out from the map which has been drawn at the instance of

defendant No.1 himself. Not only he is shown to be in

occupation of 56 Are land from Gut No. 103 but also a

constructed residential accommodation in said portion is shown.

There does not appear to be a serious contest about existence of

residential construction. This particular aspect, though has been

touched upon by trial court, its implication has not been

appreciated at all. Appellate court has given a complete go bye

to the same. The appellate court has failed to apply its mind to

relevant aspects while considering temporary injunction

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application and courts have got influenced by revenue record

disregarding position depicted by map at the instance of

defendant No. 1 himself.

14. It appears that the petitioner lays claim to possession over

3 Hectare, 84 Are land tracing its origin to the composition of

said land while record was maintained by lands survey number,

particularly survey No. 280 and 281. It further appears that

defendant No. 1 had after purchase of property caused

measurement of Gut No. 103 thrice in succession. It is intriguing

as to how and why these three different occasions have arisen

for measurement. It also emerges that there is third

measurement caused at the instance of defendant No. 1 himself,

giving an indication of 56 Are land being occupied by plaintiff -

petitioner. The consolidation record albeit shows Gut No. 102

comprising land belonging to the plaintiff and Gut No. 103

comprising land now belonging to defendant No. 1 and earlier to

defendant No. 2.

15. Trial court has purportedly referred to material produced

by the plaintiff about statements indicating possession of

petitioner over 3 Hectare, 84 Are land, however, trial court has

not given regard to the same, since statements pertain to period

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prior to preparation of consolidation record and not after and the

consolidation record depicts plaintiff to be owner only in respect

of 3 Hectare, 28 Are land and not more and since consolidation

record is not a province of civil court. Trial court has refused to

give any regard to the last of the measurement maps observing

that same may not give rise to any presumption since having

created for specific / special purpose.

16. The appellate court has absolutely not taken into account

measurement maps. Appellate court has considered that

consolidation authorities have recorded statements of interested

persons, however, forms No. 6 were issued by the consolidation

officers in favour of plaintiff as well as defendant No. 2 in respect

of 3 Hectare, 28 Are and 2 Hectare, 42 Are lands and seven

twelve extracts depict accordingly from long time. Appellate

court has referred to area of survey No. 280 and 281 and also to

that plaintiff and defendant No.2 are sons of Shripati who was

one of the four sons of deceased Balaji to whom those lands

belonged to. However, appellate court has not taken into account

origin of possession as claimed by the plaintiff - petitioner as he

had been in possession before consolidation record and claimed

continuance of actual physical possession accordingly despite

consolidation record.

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17. Claim of plaintiff - petitioner to a certain degree, at this

stage, is buttressed by last of the measurement maps caused at

the instance of defendant No. 1 and had been prepared by a

government officer. The map not only shows area and occupation

of plaintiff but also shows existence of residential structure

contained in the same. In the circumstances, at this stage, it

appears that there is some material giving rise to consider

credibility to claim of possession of plaintiff over portion of 56

Are land. Whether the same is rightful or not is a matter to be

considered at an appropriate stage. Reasons given while

rejecting claim for temporary injunction are of the nature as if

the courts have been adjudicating finally rights of the parties.

Adjudication of rights would take place in accordance with

procedure by trial. The petitioner - plaintiff at this stage appears

to have occupied a portion of Gut No. 103 about 56 Are land, as

shown in the map, and defendant No. 1 is not in position to

dispute existence of residential construction as shown in the last

of the maps drawn at his instance. It is a case wherein trial as

well as appellate court ought to have considered the same,

looking at the historical background claimed coupled with that

there had three successive measurements caused by defendant

No. 1 and from the last of the measurement map placed on

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record, prima facie the plaintiff appears to be in possession of

disputed portion of property and that if his possession is tried to

be disturbed before adjudication of rights, it would cause grave

and irreparable loss to him and as such, balance of convenience

does appear to be in favour of plaintiff - petitioner at this stage

of the matter.

18. In the circumstances, writ petition stands allowed. Two

decisions, one by trial court on Exhibit-5 in Regular Civil Suit No.

361 of 2015 dated 29th April, 2015 and the other by appellate

court in Miscellaneous Civil Appeal No. 108 of 2015 dated 15 th

April, 2017, are untenable and accordingly stand quashed and

set aside. Application Exhibit-5 in Regular Civil Suit No. 361 of

2015 for temporary injunction stands granted and shall have

operation during pendency of the suit. Rule is made absolute in

aforesaid terms. No order as to costs.

19. At this stage, Mr. Jethliya, learned advocate earnestly

requests to expedite trial of the suit, which has been pending

since 2015 and further requests that observations made

hereinbefore in this order shall not be considered as

observations on merits and shall not influence court while

deciding the suit. The request appears to be legitimate. Trial

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court to proceed with the suit as expeditiously as possible and

dispose of the same as early as possible, preferably within a

period of nine months from the date of receipt of writ of this

order. Observations made in this order as well as the

observations of trial and appellate courts in their respective

orders are at the interlocutory stage and as such, shall not be

taken as a guide elsewhere and do not have any binding efficacy.

The suit shall be decided on its own merits without getting

influenced by aforesaid orders.

[SUNIL P. DESHMUKH, J.]

drp/wp7788-17