Bombay High Court

Vinayak Vishnu Khansis And Ors vs Shashikant Venktesh Khasnis ... on 15 January, 2018

Bench: Dr. Shalini Phansalkar-Joshi

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

                                   WRIT PETITION NO.15 OF 2017

        1. Vinayak Vishnu Khasnis,                              ]
           Age : 63 years, Occ. Agriculture & Service,          ]
           R/of Dattanagar, Vishnukrupa Bungalow,               ]
           Vishrambag, Sangli.                                  ]
                                                                ]
        2. Govind Vishnu Khasnis,                               ]
           Age : 62 years, Occ. Agriculture & Service,          ]
           R/of Narsoba Galli, Tasgaon, Sangli.                 ]
                                                                ]
        3. Nitin Chainsukh Ajmera,                              ]
           Age : 59 years, Occ. Business,                       ]
           R/of Near Sanjivan Hospital,                         ]
           Gulmohar Colony, Sangli.                             ]
                                                                ]
        4. Mahendrakumar Nihalchand Soni,                       ]
           Age : 48 years, Occ. Business,                       ]
           R/of Near Sanjivan Hospital,                         ]
           Gulmohar Colony, Sangli.                             ]
                                                                ]
        5. Rajesh Motilal Chordiya,                             ]
           Age : 52 years, Occ. Business,                       ]
           R/of 6th Galli, Jaysingpur, Dist. Kolhapur.          ]
                                                                ]
        6. Anilkumar Kantilal Bardiya,                          ]
           Age : 48 years, Occ. Business,                       ]
           R/of 8th Galli, Azad Chowk, Jaysingpur.              ]
                                                                ]
        7. Swapnil Ashok Nandrekar,                             ]
           Age : 61 years, Occ. Business,                       ]
           R/of Gandhi Chowk, Jaysingpur,                       ]
           Dist. Kolhapur.                                      ]
                                                                ]
        8. Rajesh Sumermal Bafna,                               ]
           Age : 42 years, Occ. Business,                       ]
           R/of Jaysingpur, Dist. Kolhapur.                     ]
                                                                ]
        9. Shivgonda Dattu Patil,                               ]
           Age : 57 years, Occ. Agriculture,                    ]
           R/of Nimani, Tal. Tasgaon, Dist. Sangli.             ] .... Petitioners
                       Versus

                                                1/16
        WP-15-17.doc

                 ::: Uploaded on - 16/01/2018            ::: Downloaded on - 17/01/2018 02:03:15 :::
 1. Shashikant Venkatesh Khasnis (Since Deceased), ]
   Through LR : Shasikala S. Khasnis,             ]
   Age : 69 years, Occ. Household.                ]
                                                  ]
2. Sharad Shashikant Khasnis (Since Deceased),    ]
   Through LR : Moreshwar Sharad Khasnis,         ]
   Age : 19 years, Occ. Education.                ]
                                                  ]
3. Shirish Shashikant Khasnis,                    ]
   Age : 41 years, Occ. Agriculture & Business,   ]
                                                  ]
   All residents of Ram Mandir, Tal. Jath,        ]
   Dist. Sangli.                                  ]
                                                  ]
4. Sharayu Mahesh Bali,                           ]
   Age : 38 years, Occ. Service,                  ]
   R/of Caitanya 16, B.A.R.C. Colony,             ]
   Mankhurd, Mumbai - 29.                         ] .... Respondents



Mr. G.S. Godbole, Senior Counsel, i/by Mr. Kaustubh Thipsay, with Mr.
Atharva A. Dandekar, for the Petitioners.


Mr. Amit Sale for the Respondents.




                         CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.
                         RESERVED ON           : 13 TH DECEMBER 2017 .
                         PRONOUNCED ON         : 15 TH JANUARY 2018 .



JUDGMENT :

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

of admission itself, by consent of Mr. Godbole, learned Senior Counsel for

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

WP-15-17.doc

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

the Petitioners are challenging the order dated 19 th September 2016

passed by the Ad-Hoc District Judge-1, Sangli, thereby allowing the

Miscellaneous Civil Appeal No.139 of 2015, filed by the Respondents

herein against the order of interim injunction passed by the Civil Judge,

Senior Division, Sangli, on 28th August 2015 below "Exhibit-5" in Special

Civil Suit No.102 of 2012.

3. The gist of the facts, giving rise to the present Writ Petition, can be

stated, in brief, as follows :-

. Petitioners herein are the Original Defendants and cousin brothers

of the Respondents. One 'Sadashiv' was the common ancestor, who had

two sons by name 'Vishnu' and 'Venkatesh'. Petitioner Nos.1 and 2 are

the legal heirs of 'Vishnu'; whereas, Respondents are the legal heirs of

'Venkatesh'. The suit properties, bearing Survey No.504, admeasuring 3

H 78 R and Survey No.503, admeasuring 4 H 5 R, situate at Village and

Taluka Jat, District Sangli, were owned by Sadashiv.

4. Respondents herein filed a Suit claiming inter alia that, since the

death of Sadashiv, they are in possession and cultivation of the suit land

since the year 1965, to the knowledge of all other legal heirs, including

Respondents. Their names were also mutated in the 'Record of Rights' of

WP-15-17.doc

the said lands. As the land owned by the 'Friends' Association, Jath' is

adjacent to the suit lands, this 'Friends' Association, Jath' started

claiming 'right of way' from the suit lands and, therefore, the

Respondents filed Regular Civil Suit No.57 of 1988 against the said

Association. In that Suit, the evidence of Petitioner No.2-Govind was

recorded and in his evidence, he has also accepted the fact that, the suit

lands are in cultivation and possession of the Respondents herein and he

is not cultivating the same. Thus, according to the Respondents, to the

knowledge of the Petitioners, they were and are in possession and

cultivation of the suit lands. Despite that, when Respondent No.1 started

converting the said land to the 'non-agricultural' purpose, the Petitioner

Nos.1 and 2 filed a Suit for injunction, bearing Special Civil Suit No.120

of 1995 against the Respondents and in that Suit, the 'Compromise

Decree' was arrived at on 12th June 1997.

5. In the said 'Compromise Decree', it was accepted by the parties

that, the suit lands are the joint family properties and yet to be

partitioned by metes and bounds. It was further admitted in the said

'Compromise Decree' that, Survey No.504, with the entire area of 3 H 78

R, is in possession of the Petitioners and is given to their separate share;

whereas, Survey No.503 was given to the share of the Respondents.

Accordingly, the mutation entries were also made in the 'Record of

Rights'.

WP-15-17.doc

6. According to the Petitioners, based on this 'Compromise Decree',

Respondent No.1 got the land bearing Survey No.503 converted from

'agricultural' to 'non-agricultural' use, under Section 44 of the

Maharashtra Land Revenue Code, 1966, by applying to the Sub-

Divisional Officer, Miraj Division. As per the said compromise, since

Survey No.504 came to the share of Petitioner Nos.1 and 2, they

executed a registered Sale Deed of the said land in favour of Petitioner

Nos.3 to 9 for valuable consideration on 30 th August 2010, after issuing

a public notice on 28th July 2010. On the basis of this Sale Deed, the

names of Petitioner Nos.3 to 9 came to be entered into 'Record of Rights'

of the said land. As Respondent Nos.1 to 3 objected to the said mutation

entry, the Disputed Case bearing No.120 of 2011 was registered before

the Circle Officer, Jath, which came to be decided in favour of the

Petitioners on 22nd March 2011. Aggrieved by the said order,

Respondent Nos.1 to 3 preferred R.T.S. Appeal No.150 of 2011, which

came to be dismissed on 9th January 2012, thereby confirming the order

passed by the Circle Officer, Jath.

7. In spite of all these facts, as per the case of the Petitioners,

Respondent Nos.1 to 3 filed Special Civil Suit No.102 of 2012 against

them for a declaration that, they are the exclusive owners and in

possession of the suit land bearing Survey No.504 and for further

declaration that the Sale Deed dated 30 th August 2010 executed by

WP-15-17.doc

Petitioner Nos.1 and 2 in favour of Petitioner Nos.3 to 9 is illegal and not

binding on their share. Further, by relying on certain Agreement of Sale

dated 20th October 2003, allegedly executed by Petitioner Nos.1 and 2 in

favour of the Respondents, the Respondents have also claimed specific

performance of the said Agreement and for further declaration that,

they have become owners of the suit land by adverse possession and for

permanent injunction. Along with the Suit, Respondent Nos.1 to 3 have

filed an application for interim injunction at "Exhibit-5", restraining

Petitioner Nos.3 to 9 from disturbing their alleged possession over the

suit land.

8. This Suit and application for interim injunction came to be resisted

by the Petitioners herein contending, inter alia, that, they are in lawful

possession of the suit land since prior to the 'Compromise Decree' passed

on 12th June 1997 and Respondent Nos.1 to 3 were never in possession

thereof. It was also contended that, the alleged Agreement of Sale, on

which the Respondents have placed reliance, was never executed, nor

the original Agreement was produced by the Respondents before the

Trial Court. Further it was submitted that, on the date of the alleged

Agreement, Respondent No.1 was in the hospital and Respondent No.2

was on duty; hence, there is no question of executing such an Agreement

of Sale.

WP-15-17.doc

9. The Trial Court, after hearing learned counsel for both the parties,

was pleased to reject the Respondents' application for interim injunction

holding that, Respondent Nos.1 to 3 have failed to prove their possession

over the suit land, in view of the 'Compromise Decree' arrived at between

the parties earlier and the execution of alleged Agreement of Sale dated

20th October 2003 is yet to be proved on record as legal and valid.

10. Against this order, when the Respondents approached the

Appellate Court by filing Miscellaneous Civil Appeal No.139 of 2015, the

Appellate Court reversed the order of the Trial Court and by relying on

the alleged 'Agreement of Sale', held that, the Respondents are in lawful

possession of the suit land and the 'Compromise Decree' was never acted

upon, nor it was executed or engrossed on the requisite stamp-paper.

The Appellate Court, thus, allowed the Respondents' application for

interim injunction and thereby restrained the present Petitioner Nos.3

to 9 from causing obstruction to the possession of the Respondents over

the suit property.

11. While challenging this order of the Appellate Court, the submission

of learned Senior Counsel for the Petitioners is that, the Appellate Court

has clearly exceeded the scope of the jurisdiction vested in it. It is urged

that, the order passed by the Trial Court below "Exhibit-5" was a

discretionary order of interim injunction and it was supported with valid

WP-15-17.doc

reasons and the material on record. In such circumstances, it was not at

all proper or legal on the part of the Appellate Court to substitute its own

discretion in the place of the discretion exercised by the Trial Court and,

that too, on some untenable pleas, like the 'pre-emtion right'. Such right

of pre-emtion was not at all averred, pleaded or claimed by any of the

parties. It is submitted thus that, the order of the Appellate Court cannot

be sustainable in law, as it is against the material on record and hence, it

needs to be quashed and set aside.

12. Per contra, learned counsel for the Respondents have supported

the said order by submitting that, when the Trial Court has not

exercised the discretion vested in it properly, the Appellate Court was

justified in setting aside the impugned order of the Trial Court. It is

pointed out that, the order of the Appellate Court is also well reasoned

and hence, in writ jurisdiction, this Court should restrain itself from

interfering with the impugned order passed by the Appellate Court.

13. Having considered the submissions advanced by learned counsel

for both the parties and on perusal of material on record, this Court finds

that, there is much substance in the submissions advanced by learned

counsel for the Respondents. Admittedly, the suit properties were the

ancestral joint family properties of the grand-father of Petitioner Nos.1

and 2 and Respondents viz. 'Sadashiv'. In the Suit bearing Regular Civil

WP-15-17.doc

Suit No.120 of 1995, which was filed by Petitioner Nos.1 and 2 against

Respondent No.1-Shashikant, the compromise was arrived at between

the parties and as per the said 'Compromise Decree', Survey No.503 was

allotted to the share of the Respondents, as Respondent No.1-Shashikant

was already intending to convert the said land to 'non-agricultural' use;

whereas, Survey No.504 was allotted to the share of Petitioner Nos.1

and 2. The written statement filed by the Respondents therein is of

importance as it was stated therein that, the partition has already been

effected between the Petitioners and the Respondents long back and

since the partition, for about last 20 years, both of them are cultivating

the lands allotted to their share separately. However, the names of the

Original Plaintiff - Shashikant and Original Defendant - Vinayak

remained in the 'Record of Rights' and it was corrected by Mutation

Entry No.2419. Accordingly, Survey No.503 was allotted exclusively to

the share of the Original Plaintiff - Shashikant; whereas, entire Survey

No.504 was allotted to the share of the Original Defendant-Vinayak.

Thus, in that Suit, it is apparent that the Respondents herein had

accepted the exclusive ownership and possession of the Petitioners' in

the land bearing Survey No.504 and hence, now the Respondents cannot

say that they are in possession of the said land.

14. As regards the contention of the Respondents that, the

'Compromise Decree' passed in Regular Civil Suit No.120 of 1995 was

WP-15-17.doc

never acted upon, the Trial Court has rightly dealt with this aspect also,

by referring to the 'Release Deed', which was executed in pursuance of

the 'Compromise Decree' in respect of 13 R portion of the land, out of

Survey No.503, in favour of the Respondents. The affidavit to that effect

is also filed on 12th April 1999 in that Suit. Therefore, it cannot be

accepted that the said 'Compromise Decree' was never executed or acted

upon.

15. The Appellate Court has, however, unnecessarily entered into the

aspect as to whether the final decree application was filed and whether

the decree was executed on the proper stamp-paper. For the purpose of

deciding the application for interim injunction, the Court has to see

prima facie case only, that too, on the aspect of possession only. In view

of the averments made by the Respondents in the written statement

filed to the Regular Civil Suit No.120 of 1995 and in view of the

'Compromise Decree', which was arrived at between the parties; as a

result of which, Survey No.504 was allotted to the share of the present

Petitioners, Respondents had failed to prove their possession over the

suit land. Prima facie, this 'Compromise Decree' was more than

sufficient, as held by the Trial Court, to hold that the Respondents-

Plaintiffs have failed to prove their possession over the suit land.

16. Respondents have then relied upon one alleged Agreement dated

WP-15-17.doc

20th October 2003, under which the Petitioners gave up their possession

over the suit land bearing Survey No.504. However, the very execution

of the Agreement is challenged by the Petitioners, mainly on the ground

that, on the date of the Agreement dated 20 th October 2003, Petitioner

No.1-Vinayak was admitted in the hospital at Belgaon for heart surgery.

He was discharged from the hospital only on 21 st October 2003. It is also

shown that, on 20th October 2003, Petitioner No.2-Govind Vishnu

Khasnis was on duty as 'Clerk' in the Office of the Maharashtra State

Road Transport Corporation. Documents to that effect are also produced

on record. Moreover, Original Agreement dated 20th October 2003 is not

produced on record. It is also not explained in which circumstances,

such Agreement came to be executed. The Agreement is also not

executed on proper stamp-paper. In such situation, the execution of the

said Agreement needs to be proved and till then, the Respondents

cannot rely thereupon to substantiate their case that the possession of

Survey No.504 was handed over to them by Petitioner Nos.1 and 2 in the

year 2003 on the basis of the said Agreement.

17. It is pertinent to note that, the 'Compromise Deed' passed in

Regular Civil Suit No.120 of 1995 is not challenged by the Respondents.

On the basis of the said 'Compromise Deed', the names of the Petitioner

Nos.1 and 2 were also entered into the 'Record of Rights' by Mutation

Entry No.9419. Thereafter, they have executed the registered Sale Deed

WP-15-17.doc

on 30th August 2010 in favour of Petitioner Nos.3 to 9. In view of that

Sale Deed, the Mutation Entry No.16496 is also carried out. The

Respondents have challenged the said mutation entry by preferring

Complaint Application No.120 of 2011. However, the said application

was rejected and that mutation entry was confirmed on 20 th March

2011. Respondents have preferred R.T.S. Appeal No.150 of 2011 against

the said order, but it was also dismissed. Thereafter, they had preferred

R.T.S. Appeal No.53 of 2012 and it also came to be dismissed, confirming

the Mutation Entry No.16496.

18. Thus, the documentary evidence produced on record in this case

clearly goes to show that, since beginning, it is the Petitioners who were

in possession of the land bearing Survey No.504. Their possession was

confirmed by virtue of the 'Compromise Decree' arrived at between the

parties in Regular Civil Suit No.120 of 1995. Accordingly, the mutation

entries were made in the Revenue Record and in such situation, there is

no substance in the contention of the Respondents that, the 'Compromise

Decree' was not acted upon, or, subsequently, any Agreement was

executed by the Petitioners giving up their possession in respect of

Survey No.504, execution of such Agreement is yet to be proved.

19. It is also pertinent to note that, the Respondents themselves have,

by acting upon the 'Compromise Decree', got the land, bearing Survey

WP-15-17.doc

No.503 allotted to their share, converted to 'non-agricultural' use. They

have made plots therein and sold those plots. The construction is also

carried out thereon by the purchasers. Hence, absolutely no case is

made out by the Respondents to contend that the 'Compromise Decree'

was not acted upon.

20. Significantly, the Trial Court has considered all these factual

aspects in their proper perspective and then rejected the Respondents'

application for interim injunction. The Appellate Court has, however,

reversed the said order and, that too, adverting to some new case like

'pre-emtion right', which was never advanced either before the Trial

Court or before the Appellate Court and for that matter even before this

Court also. The Appellate Court has, thus, unnecessarily disturbed and

set aside the well reasoned order passed by the Trial Court, which was

also based on the material on record and acted beyond its jurisdiction.

21. Thus, when the view taken by the Trial Court was the possible view

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

Court has committed a jurisdictional 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

WP-15-17.doc

the error apparent or there is perversity 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, on 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 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, this Court

should restrain itself from interfering in the discretion exercised by the

Trial Court, merely because 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

WP-15-17.doc

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."

24. In the instant case, therefore, the impugned order passed by the

Appellate Court substituting its own view, which is also not supported by

the material on record, in place of the view taken by the Trial Court,

which appears to be the reasonable and most possible view of the matter,

needs to be quashed and set aside.

25. The Writ Petition is, accordingly, allowed. The impugned order

WP-15-17.doc

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

Trial Court below "Exhibit-5" is restored.

26. Rule is made absolute in the above terms.

27. It is made clear that, whatever observations made here-in-above

are only for the purpose of deciding this Petition and the Trial Court is