Bombay High Court
Govindrao Kerbaji Deshmukh vs Nandaji Champati Kalyane And ... on 8 January, 2018
Bench: R.V. Ghuge
WP/3816/2016
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3816 OF 2016
Govindrao Kerebaji Deshmukh
Age 60 Years, Occ. Agriculture
R/o Mugat, Tq. Mudkhed,
District Nanded. ..Petitioner
Versus
1.Nandaji Champati Kalyane
Age 30 years, Occ. Business,
R/o Mugat, Tq. Mudkhed,
District Nanded.
2. Madhav Gulabrao Bhong,
Age 30 Yeas, Occ. Business
R/o Behind Amarnath Hospital,
CIDCO, Nanded. ..Respondents
...
Advocate for Petitioner : Shri Narvade Patil R.B.
Advocate for Respondents : Shri Kale G.D.
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: January 08, 2018
...
ORAL JUDGMENT :-
1. Heard learned Advocates for the respective parties.
2. Rule.
3. By consent, Rule is made returnable forthwith and the
petition is taken up for final disposal.
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4. The petitioner is aggrieved by the order dated 9.7.2015,
passed by the trial Court, by which, the application of the
petitioner / plaintiff seeking temporary injunction under Order
XXXIX Rules 1 and 2 of the CPC has been rejected. The petitioner is
also aggrieved by the judgment and order dated 21.11.2015 passed
by the appellate Court, by which, MCA No.52 of 2015 has been
rejected.
5. I have considered the strenuous submissions of the learned
Advocate for the petitioner and the learned Advocate on behalf of
the respondents, who are original defendants 1 and 2.
6. The issue raised by the petitioner is as regards grant of
injunction and protection on the basis of the petitioner being in
possession of the suit land Gut No.333 and on the basis that the
plaintiff is cultivating the said land admeasuring 68 ares. There is no
dispute that the 7/12 extract indicates that the plaintiff was
cultivating the land till 2015 and since defendant No.1 owner of the
land has sold the same to defendant No.2, the 7/12 extract indicates
the name of defendant No.2 as being in cultivation thereof.
7. The plaintiff has preferred his suit in 2015. No where has it
WP/3816/2016
been pleaded as to what was the last crop that he has taken. A
statement is made in the plaint that he used to take the cotton and
soyabin crop as seasonal and non-seasonal crops. However, details
of the last crop for the agricultural season 2014-15 have not been
specifically set out in the plaint.
8. There cannot be a debate that an temporary injunction with
regard to the agricultural land is normally on the basis of the
possession of the claimant and the cultivation activity that has been
undertaken. Affidavits were produced by both the sides before the
trial Court, in which, Maroti Kalyane and Awadhoot Kalyane who
claimed to be adjacent owners, have stated that the plaintiff was
cultivating the land and is in possession from 2001. The defendant
also produced affidavits of Shivanand Kalyane and Govinda Pawar,
who claimed to be adjacent land owners. The trial Court noted, on
the basis of the four boundaries of the suit properties that
Shivanand's land is situated on the East side and Govinda's land is
situated on the North side of the Suit property. They are the actual
adjacent land owners, who have stated in their affidavits that
defendant No.1 was earlier cultivating the land and presently, i.e. in
2015 defendant No.2, who has purchased the land from defendant
No.1 has been cultivating.
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9. The 7/12 extract for the years 2015 onwards indicate that
defendant No.2 is now cultivating the land. It is in this backdrop
that the trial Court as well as the appellate Court concluded on a
prima facie appreciation of the documentary evidence that
defendant No.2, who is a bonafide purchaser, has been put in
possession by defendant No.1 and he has been cultivating the land.
10. Learned counsel for the petitioner strenuously submits that
from about 1999-2000, the plaintiff was cultivating the land. Earlier
he was cultivating land Gut No. 722, which belonged to the brother
of defendant No.1. He was offered land Gut No.333 by defendant
No.1 and he, therefore, gave up the land Gut No.727 and entered
land Gut No.333. I, however, find that there are no pleadings to this
effect in the plaint. No written document was prepared by the
plaintiff while entering land Gut No.333.
11. Considering the above and in the face of concurrent findings,
I do not find that the impugned orders could be termed as being
perverse or erroneous. This petition being devoid of merits is,
therefore, dismissed. Rule is discharged.
12. Since it is informed that the recording of evidence is likely to
commence in RCS No.17 of 2015, the trial Court is requested to
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decide the said suit as expeditiously as possible.
( RAVINDRA V. GHUGE, J. )
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akl/d
