Bombay High Court

Ankush Manaji Jadhav And Others vs Govind Chandrabhan Shirsath And ... on 15 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.3061 OF 2017

 1.       Ankush Manaji Jadhav                                PETITIONERS
          Age - 57 years, Occ - Agriculture

 2.       Sopan Ankush Jadhav,
          Age - 37 years, Occ - Agriculture

 3.       Jalindar Ankush Jadhav,
          Age - 32 years, Occ - Agriculture
          No.2 and 3 R/o Unchegaon, Ramnagar,
          Taluka - Paithan, District - Aurangabad

 4.       Aruna Prakash Jadhav,
          Age - 50 years, Occ - Agriculture

 5.       Prakash Shahu Jadhav,
          Age - 52 years, Occ - Agriculture
          Nos. 4 and 5 R/o Kadgaon,
          Taluka - Pathardi, District - Ahmednagar

 6.       Kailash Prakash Jadhav,
          Age - 32 years, Occ - Agriculture
          R/o Tajanpur (Sade)
          Taluka - Shevgaon, District - Ahmednagar

          VERSUS

 1.       Govind Chandrabhan Shirsath                       RESPONDENTS
          Age - 33 years, Occ - Agriculture

 2.       Sachin Nanasaheb Shirsath,
          Age - 50 years, Occ - Agriculture

 3.       Lahu Manaji Jadhav,
          Age - 54 years, Occ - Agriculture

 4.       Nanda Lahu Jadhav,
          Age - 47 years, Occ - Agriculture

 5.       Kusum Ankush Jadhav,




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          Age - 42 years, Occ - Agriculture
          All R/o Kadgaon, Taluka - Pathardi,
          District - Ahmednagar

                              .......

Mr. Yuvraj V. Kakade, Advocate for the petitioners Mr. Prashant R. Nangare, Advocate for respondents No.1 and 2 .......

[CORAM : SUNIL P. DESHMUKH, J.]

DATE : 15th JUNE, 2017

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally by

consent of learned advocates for the appearing parties.

2. Writ petition has been moved by defendants No. 1, 3 and 6

to 9 in Special Civil Suit No. 228 of 2014 instituted by present

respondents No. 1 and 2 seeking perpetual injunction against

defendants No. 1 to 9 in respect of property bearing Gut No. 131

admeasuring 2 Hectare 52 Are situated at Kadgaon, Taluka -

Pathardi, District - Ahmednagar.

3. Learned advocate Mr. Kakade has vehemently submitted

that while application for temporary injunction in said suit had

been confined only against defendants No. 2, 4 and 5 and the

temporary injunction application had been rejected,

Miscellaneous Civil Appeal No.51 of 2015 came to be preferred

against all the defendants, including present petitioners, ignoring

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that temporary injunction application had been considered only

against defendants No. 2, 4 and 5 and not against present

petitioners. The appeal has been allowed, in the process, there is

loss of opportunity to contest temporary injunction application at

first instance before trial court. He accordingly, submits that the

decision rendered in such miscellaneous civil appeal, as such, is

untenable against present petitioners.

4. So far as merits are concerned, he contends that original

owner of suit property, Dhanaji Jadhav had executed a mortgage

deed in favour of one Raoji Nagare with tenure of five years.

Subsequently, Raoji died in 1951 and the property came to be

recorded in the name of his two wives - Sundarabai and

Chandrabhagabai. In 1953 Dhanaji died. Revenue record

depicted that Dhanaji had been tenant of the property, albeit,

subsequently, said entry came to be deleted.

5. He further submits that Chandrabhagabai and Sundarbai

purportedly sold suit property to one Kisan Pote. Yet, according

to him, transactions so entered into in respect of suit property

did not affect that transaction by Dhanaji in favour of Raoji was

mortgage and as such, sale by the women did not have any legal

efficacy. He further contends that the petitioners are

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descendants of Dhanaji Jadhav and Manaji Jadhav, two brothers,

who were owners of suit property and that they have dwelling

houses situated over some portion of the property.

6. Mr. Kakade further refers to a pursis filed on behalf of

plaintiffs at Exhibit-60 wherein, hearing of Exhibit-5 - temporary

injunction application had been confined to defendants No. 2, 4

and 5 and not the petitioners. He further purports to refer to an

order dated 11th June, 2014 passed by Joint Civil Judge, Junior

Division, whereunder show cause notice had been issued to all

the defendants and two orders dated 24th June, 2014 under

which initially the court had restrained defendants No. 2, 4 and 5

from interfering with suit property and subsequently had

liberated injunction in respect of dwelling houses of said

defendants No. 2, 4 and 5.

7. Learned advocate contends that there is no authenticity to

the claim made by plaintiffs about ownership and possession

over suit property. Trial court has observed that record does not

depict any credibility to the passing of property into the hands of

plaintiffs. Observations of trial court would depict that the claim

of plaintiffs does not rest on any genuine record and for want of

authentic and genuine record, the plaintiffs were not held

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entitled to for injunction and application Exhibit-5 was rejected.

8. Learned advocate further goes on to contend that the

appellate court, however, despite aforesaid observations of trial

court, overlooking the same, had misdirected itself and had also

been oblivious of that plaintiffs could not rest their claim on any

authentic record as observed by the trial court. Learned judge of

appellate court has been in error in going by the ostensible

recent revenue record disregarding the factual position. Learned

advocate contends that after execution of document in 1947 by

Dhanaji, the land, revenue record shows, was barren.

9. Countering aforesaid submissions, learned advocate Mr.

Nangare submits that suit has been filed by plaintiffs with

reference to execution of title deed in their favour. He submits

that entire record, since 1947 evinces that petitioners have no

nexus whatsoever with suit property. There have been series of

transactions from time to time over and in respect of suit

property passing the title of the property from one hand to the

other under registered deeds. He refers to consolidation record

to aforesaid effect. He further purports to refer to revenue

record maintained in respect of suit property. He submits that at

no point of time, revenue record shows, after 1947, present

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petitioners, who claim themselves to be descendants of Dhanaji

and Manaji, to be in any way concerned with suit property let

alone its possession. Learned advocate goes on to contend that

so far as objection to impugned order passed by appellate court

about hearing of temporary injunction required in respect of

defendants No. 2, 4 and 5 is concerned, while pursis had been

compelled to that effect since quite a few of defendants had

been avoiding service and in the process, the plaintiffs'

possession was getting insecure and meddled with. While their

application for temporary injunction came to be rejected, appeal

came to be preferred against all the defendants. In appeal all the

defendants had accordingly appeared. At no point of time, during

the course of hearing of the appeal, any objection had ever been

raised on behalf of the petitioners that any prejudice is being

caused to them because they did not get opportunity to contest

temporary injunction application nor they did submit that

hearing of miscellaneous civil appeal can be confined only in

respect of defendants No. 2, 4 and 5. Their participation in

hearing of appeal has been full fledged. They have filed not only

their written statement but even response to the miscellaneous

civil appeal. He submits that under the circumstances, it is too

late in the day to take exception to the impugned order and turn

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around on such a technical plea. Petitioners are estopped from

veering around and object to the impugned order on that

ground.

10. Having heard learned advocates as aforesaid and on

perusal of the order impugned in present petition, appellate

court appears to have taken stock of the situation. The appellate

court has observed in paragraphs No. 10 and 11 of the impugned

order thus -

" 10. The extract of consolidation shows that Punja Kisan and Asarabai Kisan are the owners of Survey nos.26/2 and 26/8, mutation no.525 shows that on 29.12.1953 Kisan purchased S. No.26/8 for Rs.400/-, index extract to that effect is also filed on record. Index extract shows that Kisan Pote purchased S. No.26/2 for Rs.600/- in 1956, mutation no.41 dated 12.03.1986 shows the names of Asarabai and Punja in respect of G. no.131 the trial court held that mutation entries are not certified by competent authority and document on the basis of which these entries are taken are not filed on record. But whether those entries are proper or bogus is the matter of evidence, we are deciding Exh.5 application, we have to see prima facie case, possession is to be seen and not title on the date of suit so the observations of learned trial Court in this regard are not proper and interference is called for.

11. The 7/12 extract shows that plaintiffs are in possession of suit property. On the date of suit, names of defendants are not appearing. It is pertinent to note that mutation entries are not challenged, unless mutation entries or sale deeds are not set aside, at this stage, it cannot be held that those documents are doubtful. The defendants have not challenged the entries passed at the time of consolidation. The letter of

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Tahsildar also shows that whatever allegations were made by the defendants with the police station, there is no substance. Considering all these facts and the fact that on the ate of filing of suit, the names of plaintiffs are appearing as possessor of suit property. Hence, prima facie plaintiffs are in possession of suit property and if injunction is not granted, they will suffer irreparable loss and balance of convenience also lies in their favour. Considering all these facts, I am of the opinion that the order passed by the learned trial court below exh.5 is not proper and legal, and interference is called for, the interest of both parties can be secured by expediting the hearing of original suit."

11. Aforesaid, observations appear to be with reference to

record as is placed before the court, which indicates that the

plaintiffs to a large extent have been able to show, with

reference to material record, that they are in possession of suit

property. Appellate court has further appreciated not only names

of defendants are not appearing in revenue record, but also

mutation entries or sale deeds have not been challenged nor

those have been set aside yet. Additionally, petitioners have not

been in a position to show by any credible material infusing

substance in the contentions as have been advanced on behalf of

the petitioners about them having dwelling houses over the suit

property. Appreciation by the appellate court appears to be with