Pramila Balasaheb Bhintade And ... vs Anusaya Sarjerao Gujar And Ors
2018 Latest Caselaw 308 Bom

Dixit
               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CIVIL APPELLATE JURISDICTION

                               WRIT PETITION NO.11550 OF 2017

        Pramila Balasaheb Bhintade & Ors.                          .... Petitioners
                   V/s.
        Anusaya Sarjerao Gujar & Ors.                              .... Respondents


        Mr. Dhananjayrao D. Rananaware for the Petitioners.
        Mr. Vijay D. Patil for the Respondents.


                                 CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.
                                 RESERVED ON           : 9 TH JANUARY 2018 .
                                 PRONOUNCED ON         : 11 TH JANUARY 2018 .


        JUDGMENT :

1. Rule. Rule is made returnable forthwith. Heard finally, at the stage

of admission itself, by consent of Mr. Rananaware, learned counsel for

the Petitioners, and Mr. Patil, learned counsel for the Respondents.

2. By this Petition, filed under Article 227 of the Constitution of India,

the Petitioners are challenging the order dated 4 th October 2017 passed

by the District Judge-3, Satara, thereby allowing the Miscellaneous Civil

Appeal No.96 of 2017, which Appeal was preferred by the Respondents

herein challenging the order dated 6th May 2017 passed by the 7th Joint

Civil Judge, Junior Division, Satara, below "Exhibit-5" in Regular Civil

Suit No.480 of 2014.

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3. The Petitioners herein are the Original Plaintiffs, who had filed the

Suit for declaration that, they are the owners and in possession of the

suit property and for perpetual injunction, restraining the Respondents

from creating obstruction to their peaceful possession over the suit

property. Along with the Suit, they had filed the application for interim

injunction at "Exhibit-5", which came to be allowed by the Trial Court.

However, in the Civil Miscellaneous Appeal preferred against the same,

the order of interim injunction granted by the Trial Court came to be

vacated.

4. The case of the Petitioners is that, the agricultural lands, bearing

Gat No.169, admeasuring 40 R, situate at Mouje Ambavade, and Gat

No.461, admeasuring 70 R, situate at Mouje Bhondawade, Taluka and

District Satara, were owned by them. The predecessor of the

Respondents, namely, 'Bajirao Khetri Gujar' was the protected tenant in

the said lands. The Petitioners' predecessor had, therefore, filed Tenancy

Case No.54 of 1962, under Section 33-B of the Bombay Tenancy and

Agricultural Lands Act, 1948, for recovery of possession of the

agricultural lands to the extent of 20 R, out of Gat No.169, and 63 R, out

of Gat No.461. The said proceedings were decided in favour of the

Petitioners' predecessor on 31st July 1962 and the Respondents'

predecessors were directed to handover possession of the said portion of

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the lands. As per the Petitioners, the possession of the said portions of

the lands, which formed the subject matter of the Suit, was, accordingly,

delivered to them in the year 1968 by executing the Possession Receipt

(Kabjepatti). The mutation entry to that effect, bearing Mutation Entry

No.10, was certified in respect of the suit land, bearing Gat No.461 at

Village Bhondawade; while Mutation Entry No.60 was certified in

respect of the land bearing Gat No.169 at Village Ambavade. According

to the Petitioners, since then, they are in peaceful possession and

enjoyment of the suit properties.

5. However, in the meanwhile, the Respondents had initiated

Tenancy Proceeding No.31/Ambavade and 20/Bhondawade for

purchasing the remaining portion of 20 R, out of Gat No.169, and 7 R,

out of Gat No.461. Accordingly, "32-M Certificate" was issued in favour

of their predecessor. However, while issuing "32-M Certificate", the

entire area of Gat Nos.169 and 461 was wrongly mentioned in the said

Certificate. Therefore, the Petitioners initiated proceedings by filing

R.T.S. Appeal No.77 of 1985 for cancellation of the mutation entries

certified in respect of the whole Gat Nos.169 and 461 in the name of the

Respondents' predecessor. The said Appeal has been allowed by the Sub-

Divisional Officer, Satara, by an order dated 26 th November 1985. The

Respondents challenged the said order by filing Second Appeal No.28 of

1981, but not succeeded therein. The Petitioners thereafter filed

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Tenancy Inspection Application No.102 of 1993 and Tenancy Appeal

No.103 of 1993 for correction of "32-M Certificate" issued in favour of

the Respondents' predecessor. The same has been allowed by the Sub-

Divisional Officer, Satara, by an order dated 30 th March 2002.

Accordingly, the names of the Petitioners and Respondents are recorded

in the Revenue Record of Gat No.169 and Gat No.461 to the extent of

their areas as per the Mutation Entry Nos.708 and 474, respectively.

6. In the backdrop of these facts, the Petitioners claimed the relief of

interim injunction, restraining the Respondents from causing

obstruction to their possession in the suit lands. The learned Trial Court,

after considering the above-said factual aspects and the Revenue

Record, allowed the said application holding that, the Petitioners have

succeeded in proving their title and possession over the suit properties

on the date of filing of the Suit.

7. However, in the Miscellaneous Civil Appeal preferred by the

Respondents against the said order, the learned Appellate Court was

pleased to hold that, in the absence of any evidence produced on record

by the Petitioners, showing that possession of the suit lands was actually

delivered to them, as per the procedure laid down under Sections 15 and

29(2) of the Bombay Tenancy and Agricultural Lands Act, 1948, the

Petitioners cannot be held to have acquired and thereafter to be in

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possession of the suit lands. The Appellate Court, therefore, held that,

the Petitioners are not entitled to get the relief of interim injunction. The

learned Appellate Court, hence, vacated the order of interim injunction

passed by the Trial Court in favour of the Petitioners, by allowing the

said Appeal.

8. While challenging this impugned order of the Appellate Court, the

submission of learned counsel for the Petitioners is two fold. In the first

place, it is submitted that, when the Trial Court has exercised its

discretion while granting the relief of temporary injunction and that

discretion is based upon consideration of material placed before it and is

supported by the cogent reasons, the Appellate Court should not have

interfered in the said discretion and substituted its own view; especially

when the view taken by the Trial Court cannot be said to be perverse in

any way.

9. Secondly, it is submitted that, the Revenue Record, which is the

prima facie proof of possession over the suit land, clearly goes to show

that it is the Petitioners, who are in possession of the said lands. The

Trial Court has given its due weightage to the Revenue Record and the

Mutation Entry Nos.10 and 60. The Appellate Court should not have

brushed aside the said record on supposed consideration that the due

procedure for handing over the possession was not followed. It is urged

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that, at the stage of deciding the application for interim injunction, the

Court is not required to consider the legality or nature of the possession,

but only the physical possession and which was sufficiently proved to be

that of the Petitioners from the mutation entries in the "7/12 Extract".

As the Appellate Court has discarded the same and rejected the

Petitioners' application for interim injunction, the impugned order

passed by the Appellate Court, according to the learned counsel for the

Petitioners, cannot be sustained in law and is, hence, liable to be quashed

and set aside.

10. Per contra, learned counsel for the Respondents has supported the

said order for the reasons given in the same; especially highlighting the

aspect that, Section 29(2) of the Bombay Tenancy and Agricultural

Lands Act, 1948, mandates a procedure to be followed, when the

possession of the land is to be handed over from the tenant to the

landlord. In the instant case, there is no material, worth the name, to

show that such procedure was followed. Neither the Possession Receipt

(Kabjepatti) is produced, nor any document is produced to show that

any inquiry was held by the Mamlatdar before handing over such

possession. Thus, according to learned counsel for the Respondents, sans

any evidence proving that the possession was actually delivered to the

Petitioners by taking it over from the Respondents-tenants, the

Appellate Court has rightly held that, in the absence of such evidence,

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the Petitioners cannot be held to be in possession of the suit lands and

the aspect of physical possession over the suit lands being of vital

importance for deciding the application for interim injunction and

delivery of that physical possession being not proved and the

presumption raised by the mutation entries in the Revenue Record being

rebutted thereby, the Appellate Court has rightly rejected the

Petitioners' application for interim injunction, thereby setting aside the

order passed by the Trial Court. According to learned counsel for the

Respondents, when the Trial Court has not exercised its discretion

properly, it was incumbent on the part of the Appellate Court to interfere

in the said discretion, to correct the same.

11. In this case, the only disputed point for consideration is, 'whether

the Petitioners were actually put into physical possession of the suit

lands?' As regards the proceedings before the Tenancy Authorities,

initiated by the Petitioners, under Section 33-B of the Bombay Tenancy

and Agricultural Lands Act, 1948, which culminated in holding them

entitled to the possession of the suit lands, there is no dispute. It is also

not disputed that, in respect of the remaining portion of the said lands,

the Respondents have obtained "32-M Certificate" and it has become

final. It is further not disputed that, as the "32-M Certificate" was

initially issued in respect of entire portion of both the lands, on the

application given by the Petitioners, the said "32-M Certificate" also

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came to be corrected. The Tenancy Appeal preferred to that effect by the

Petitioners came to be allowed and the Appeal preferred against the

same was rejected. Thus, as on today, the Mutation Entry Nos.708 and

474 are standing, respectively, in the names of the Petitioners and

Respondents in respect of the areas, to which they are held entitled.

12. To prove that the possession of the suit lands was actually given to

them in the year 1968 itself, after the Tenancy Case No.54 of 1962, filed

under Section 33-B of the Bombay Tenancy and Agricultural Lands Act,

1948, was decided on 31st July 1962, the Petitioners are relying on the

Mutation Entry Nos.10 and 60. The copies of those mutation entries are

also produced on record and they reveal that, on the basis of the

Possession Receipt (Kabjepatti) dated 16th June 1968, as a result of

decision in Tenancy Case No.54 of 1962, the name of the Petitioners

were entered in the 'Record of Rights'. Those mutation entries were

neither challenged by the Respondents, nor set aside till the year 1984,

when, on account of the "32-M Certificate", issued in the name of the

Respondents, inadvertently, in respect of the entire area of both the Gat

numbers, the name of the Petitioners came to be removed. However,

again after the "32-M Certificate" was corrected, new Mutation Entries

Nos.708 and 474 were made and thus, the names of the Petitioners are

definitely appearing in the 'Record of Rights' of the suit lands.

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13. The question for consideration is, 'whether these mutation entries

and the entries in the "7/12 Extract" of the suit lands, which are prima

facie proof of possession, can be ignored or discarded while deciding the

application for interim injunction filed by the Petitioners?'

14. In my considered opinion, the answer thereto has to be held in the

negative, because, the mutation entry carry a weight and the

presumption; especially, in the present case, when such mutation entry

is made on the basis of the Possession Receipt and, that too, in view of

the decision given in Tenancy Case No.54 of 1962, which decision has

attained finality. As stated above, these Mutation Entries Nos.10 and 60,

made in the year 1968, were never challenged at any time by the

Respondents also.

15. As to the question 'whether the requisite procedure laid down

under Section 29(2) of the Bombay Tenancy and Agricultural Lands Act,

1948, of filing an application and Mamlatdar holding inquiry thereto' , is

followed or not, it has to be held as complied with in this case, as there is

a presumption that all the official acts are done in official way; unless it

is shown that they are not so done and the burden is upon the other

parties, which asserts that they were not done in the official way or in

the manner prescribed by law. Here in the case, the mutation entries

clearly go to show that, on the basis of the Possession Receipt

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(Kabjepatti), the mutation entries were made and, therefore, it follows

that such Possession Receipt was executed and one can presume that, it

being an official act of the Revenue Authorities, the requisite procedure

for executing Possession Receipt was followed. Now it may be, because of

lapse of time of more than about 60 years, that the 'Document of

Possession Receipt' may not be available for the Petitioners to prove that

such Possession Receipt was executed or the inquiry was actually

conducted. But then, there is no reason to disbelieve the same also, as

the Revenue Authorities like Mamlatdar or Tenancy Karkoon were

required to follow the procedure, when they were handing over

possession from a tenant to the landlord and, that too, on the basis of the

decision passed in Tenancy Case No.54 of 1962, under Section 33-B of

the Bombay Tenancy and Agricultural Lands Act. At this prima facie

stage, there is no reason to disbelieve these mutation entries or to

discard them on the supposed consideration that such procedure was

not followed, only because the Petitioners have failed to produce the

documentary evidence to that effect, on account of their inability to do

so due to passage of time.

16. According to learned counsel for the Respondents, however, the

Judgment in Tenancy A.L.T. Case No.20 and 31, the copy of which is

produced at "Exhibit-C" to the Petition, goes to show that, in the said

case, there is clear observation to the effect that, "as the landlord died in

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the year 1964 before taking over the possession, the decree could not be

executed, heirs of the Deceased landlord have already applied to the

Mamlatdar, Satara, for grant of possession of the portions, to which they

are held entitled in pursuance of the Decree". Thus, it is submitted that,

these averments in the said decision go to show that such possession

was not handed over to the Petitioners.

17. However, it is pertinent to note that, this Tenancy Case was

decided on 20th February 1967. The very case of the Petitioners is that,

the possession was handed over to them in pursuance of the Possession

Receipt dated 16th June 1968. Therefore, no question arises of these

observations coming into the way of the Petitioners to hold that

possession was not delivered to them. Conversely, these observations

show that, Petitioners had already applied to the Mamlatdar for grant of

possession of the portion given to them as per the order passed under

Section 33-B of the Bombay Tenancy and Agricultural Lands Act, 1948.

The very fact that such application was made to the Mamlatdar, goes to,

prima facie, prove that the procedure required under Section 29(2) of

the Bombay Tenancy and Agricultural Lands Act, 1948 Act, was

followed.

18. Even further, the averments made in the said decision, in

discussion of Issue No.3, show that the Respondents had also, in the said

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inquiry before the Tenancy Authority, showed their willingness to

handover portion of the lands to the legal heirs of the landlord for

personal cultivation. Therefore, as regards the delivery of possession of

the suit lands, to which the Petitioners were held entitled, under Section

33-B of the Bombay Tenancy and Agricultural Lands Act, 1948, there

should not be any reason to doubt.

19. Even in the proceedings for correction of "32-M Certificate",

bearing R.T.S. Appeal No.77 of 1985, the copy of which is produced at

Exhibit "D" to the Petition, though the Respondents had challenged the

possession of the Petitioners on the ground that Possession Receipt

(Kabjepatti) was not produced, the said contention was rejected, having

regard to the entries in the "7/12 Extract" from the year '1966-67 to

1976-77' in respect of Gat No.461 and '1966-1967 to 1979-1980' in

respect of Gat No.169 in the names of the Petitioners. Even in R.T.S.

Appeal No.28 of 1986 also, the copy of which is produced on record at

Exhibit-A, it was categorically held that, the Respondents, i.e. the

present Petitioners, have obtained possession of the suit lands in

pursuance of the Possession Receipt (Kabjepatti) dated 16th June 1968,

as per the order passed under Section 33-B of the Bombay Tenancy and

Agricultural Lands Act, 1948, and they are in possession of their

respective portions.

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20. Thus, consistent evidence on record goes to show that the

Petitioners were actually put into possession of the suit lands. Only

because of the non-availability of the relevant documents like Possession

Receipt and the papers of inquiry conducted by the Mamlatdar, that too,

on account of passage of time and for no fault on the part of the

Petitioners, the Appellate Court has, on supposed consideration that

such requisite procedure laid down in Section 29(2) of the Bombay

Tenancy and Agricultural Lands Act, 1948, was not followed, disbelieved

these mutation entries and disturbed the well reasoned order of the Trial

Court. As rightly held by the Trial Court, at the stage of deciding the

application for interim injunction, the Court can safely place reliance on

the entries in the 'Revenue Record' and in this case, those entries clearly

go to show the Petitioners' possession in the suit land. Those entries also

show that requisite procedure was followed. The presumption of official

acts being done in proper official way, in accordance with the law, was

also available in the case. That presumption does not stand rebutted at

this stage. For the purpose of deciding the application for interim

injunction, as there was sufficient material, proving the possession of

the Petitioners over the suit property since the year 1968, the Appellate

Court should not have disturbed the well-reasoned order of the Trial

Court.

21. When the view taken by the Trial Court was the possible view of

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the matter based on the material produced before it, the Appellate Court

has committed a jurisdiction error in substituting its own discretion in

the place of the discretion exercised by the Trial Court. The law is fairly

well settled that the Appellate Court should not interfere in the

discretionary order passed by the Trial Court in respect of interim

injunction, unless it comes to the conclusion that the order is vitiated by

an error apparent or it is perverse and it can result into manifest

injustice.

22. As held by the Apex Court in the case of Skyline Education

Institute (India) Private Limited Vs. S.L. Vaswani & Anr., 2010 (2) ALL

MR 427,

"The Appellate Court should be loath to interfere in the discretionary order of the Trial Court, simply because of a de novo consideration of the matter, it is possible for the Appellate Court to form a different opinion on the issues of prima facie case, balance of convenience, irreparable injury and equity."

23. One can also place reliance in this respect on the landmark

decision of the Apex Court in the case of Wander Ltd. & Anr. vs. Antox

India P. Ltd., 1990 (supp.) SCC 727 , wherein the Apex Court has

reiterated that, the Appellate Court should restrain itself from

interfering in the discretion exercised by the Trial Court, merely because

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the Appellate Court may arrive at a different view. For ready reference,

paragraph No.14 of the said Judgment can be reproduced as follows :-

"14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the Appellate Court will not interfere with the exercise of discretion of the Court of first instance and substitute its own discretion, except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversely, or, where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not re-assess the material and seek to reach a conclusion different from the one reached by the Court below, if the one reached by that Court was reasonably possible on the material. The Appellate Court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage, it would have come to a contrary conclusion. If the discretion has been exercised by the trial Court reasonably and in a judicial manner, the fact that the Appellate Court would have taken a different view, may not justify interference with the trial Court's exercise of discretion."

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24. In the instant case, therefore, it has to be held that, the impugned

order passed by the Appellate Court cannot be sustained in law on

merits, as well as being found to be beyond the scope of its jurisdiction.

The Writ Petition is, therefore, allowed. The impugned order passed by

the Appellate Court is set aside and the order passed by the Trial Court

below "Exhibit-5" is restored.

25. Rule is made absolute in the above terms.

[DR. SHALINI PHANSALKAR-JOSHI, J.]

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