Bombay High Court
Mohammad Harun Abubkar vs Raghunath Balaji Gorde And Others on 13 June, 2017
Bench: S.P. Deshmukh
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drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.398 OF 2017
Mohammad Harun Abubkar PETITIONER
Age - 40 years, Occ - Agriculture
R/o House No.789, Guruwar Ward,
Khushamatpura, Malegaon,
Taluka - Malegaon, District - Nashik
VERSUS
1. Raghunath s/o Balaji Gorde RESPONDENTS
Age - 65 years, Occ - Agriculture
R/o Ranjangaon Deshmukh,
Taluka - Kopargaon, District - Ahmednagar
2. Baban s/o Balaji Gorde,
Age - 75 years, Occ - Agriculture
R/o Ranjangaon Deshmukh,
Taluka - Kopargaon, District - Ahmednagar
3. Smt. Bebi Sampat Gorde,
Age - 40 years, Occ - Agriculture
R/o Ranjangaon Deshmukh,
Taluka - Kopargaon, District - Ahmednagar
4. Maruti s/o Raghunath Gorde,
Age - 60 yeas, Occ - Agriculture
R/o Ranjangaon Deshmukh,
Taluka - Kopargaon, District - Ahmednagar
.......
Mr. D. S. Bagul, dvocate for the petitioner
Mr. V. H. Dighe, Advocate for respondent No.2
.......
[CORAM : SUNIL P. DESHMUKH, J.]
DATE : 13th JUNE, 2017
ORAL JUDGMENT :
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1. Rule. Rule made returnable forthwith and heard learned
advocates for the appearing parties finally by consent.
2. This petition has been moved purporting to challenge order
dated 8th November, 2016, whereunder petitioner's request for
temporary injunction has been declined by appellate court
reversing order passed by trial court granting temporary
injunction application.
3. Mr. Bagul, learned advocate vehemently submits that
property had been taken in possession way back in 1955 and
that the respondents do not have any tenancy claim over suit
property, since then. Names of respondents stand deleted from
the record of suit property, under mutation entry bearing
No.4194. The property had thereafter been duly purchased by
the petitioner from original owners under a registered sale deed,
putting the petitioner in possession. Further, he refers to that
occupants of the property had vacated the property under
agreements dated 16th August, 2013 and 19th August, 2013,
which are notarized bearing photographs of the executants.
However, the defendants tried to meddle with suit property
despite execution of documents entailing institution of Regular
Civil Suit No.53 of 2015 for perpetual injunction.
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4. Mr. Bagul contends that having regard to aforesaid, trial
court has duly granted temporary injunction as prayed for with
reference to the documents on record as aforesaid. He submits
that the appellate court has been in error in reversing the order
and the same is based on conjectures and surmises. He
contends that the appellate court has imagined the situation and
its effect rather than assessing the documents produced on
record on behalf of the petitioner. He submits that the appellate
court has been in error in observing that the agreements with
respondents No. 3 and 4 ought to have been before a proper
court, where litigation has been pending and notarized
documents could not help. He, therefore, urges to intervene in
the matter and restore the position as had been subsisting prior
to the impugned order dated 8th November, 2016 passed by
District Judge - 2, Kopargaon.
5. Mr. Dighe, learned advocate appearing for the respondents
vehemently contends that entire record which is sought to be
placed reliance on is not reliable and is apparently manipulated.
He submits that the appellate court has rightly adjudged, having
regard to the situation, that although it is the case of the
petitioners that the suit property had been delivered possession
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of way back in 1955, creation of documents of 2013 itself stands
testimony of possession of respondents over the suit property. It
is not the case that the appellate court has hypothetically
imagined the case. It has assessed the documents, its weight
and its efficacy and the surrounding circumstances very aptly, at
least at this prima facie stage. He submits that flurry of activity
has suddenly taken place since suit for injunction had been
instituted by present respondents against original owners of the
property and the present petitioner. The suit is pending and
during pendency of that suit, mutation entry has been caused
behind the back of the respondents. The order has been passed
on a single day and thereafter it has been shown that sale deed
has been executed and possession had been parted with, which
had not been there with the original owners. Further, in order to
undo the suit filed by the present respondents bearing Regular
Civil Suit No.97 of 2013, two documents extra litigation have
been manufactured purporting to show that respondents No. 3
and 4 have vacated possession over the suit property. According
to learned advocate, the documents are unreliable and are sham
and bogus and could not have been relied on and the appellate
court has rightly adjudged their inefficacy. He submits that
pleadings and the record are at variance and thus appellate
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court has allowed the appeal, which is not amenable for
interjection under writ jurisdiction of this court.
6. Having heard learned advocates as aforesaid, appreciation
by the appellate court as appearing under paragraphs No. 7, 8
and 9 is a possible view of the case at this stage and only for the
reason that some other view can be had, as has been considered
by the trial court, may not be a good reason in the given facts
and circumstances of the case to meddle with the impugned
order. In the given facts and circumstances of the case,
appreciation at the interlocutory stage appears to be not such an
appreciation which can be termed as perverse.
7. In view of aforesaid, I am disinclined to interfere with the
impugned order. Writ petition, as such, stands dismissed. Rule is
discharged.
8. It is, however, made clear that observations made hitherto
by trial as well as appellate court and the observations under
this order are only at the interlocutory stage of the proceedings
and shall not influence decision on merits in the suit.
[SUNIL P. DESHMUKH, J.]
drp/wp398-17
