Shri. Ramdas Trimbak Sanap And Ors vs Bajirao Trimbak Sanap
2018 Latest Caselaw 90 Bom

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

                                WRIT PETITION NO.5913 OF 2017

        1. Shri Ramdas Trimbak Sanap,                          ]
           Age 53 years, Occ. Agriculture.                     ]
                                                               ]
        2. Shri Balasaheb Trimbak Sanap,                       ]
           Age 50 years, Occ. Agriculture.                     ]
                                                               ]
        3. Shri Sudam Trimbak Sanap,                           ]
           Age 48 years, Occ. Agriculture.                     ]
                                                               ]
             All residing at Sonewadi (Khurd),                 ]
             Taluka Niphad, District Nashik.                   ]          .... Petitioners

                    Versus

        Bajirao Trimbak Sanap,                                 ]
        Age 46 years, Occ. Agriculture,                        ]
        R/at Sonewadi (Khurd),                                 ]
        Taluka Niphad, District Nashik.                        ]          .... Respondent


        Mr. Sugandh B. Deshmukh for the Petitioners.
        Mr. Girish R. Agrawal for the Respondent.


                                  CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.

                                  DATE          : 5 TH JANUARY 2018.


        ORAL JUDGMENT :

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

of admission itself, by consent of Mr. Deshmukh, learned counsel for the

Petitioners, and Mr. Agrawal, learned counsel for the Respondent.

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

the Petitioners are challenging the order dated 2 nd May 2017 passed by

the District Judge-2, Niphad, District Nasik, thereby dismissing the

Miscellaneous Civil Appeal No.17 of 2017 preferred by the Petitioners

against the order dated 1st March 2017 passed by the 2 nd Joint Civil

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

No.233 of 2016.

3. The Petitioners are the Original Defendants. The Respondent

herein has filed a Suit against them for declaration that the suit

properties, as mentioned in paragraph No.1(A) to 1(C) and paragraph

No.3 of the Regular Civil Suit No.233 of 2016, are received by him in the

partition and they are exclusively owned and possessed by him. Along

with this relief, the Respondent is also claiming permanent injunction

restraining the present Petitioners from causing obstruction to his

possession in the suit properties.

4. The case of the Respondent is that, the suit properties were

ancestral joint family properties. By virtue of the partition effected on

4th March 2009, the Mutation Entry No.8204 was also made, thereby

entering the name of the Respondent in the "7/12 Extract" of the suit

properties. He is cultivating the same and he is in peaceful possession of

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the same; however, now the Petitioners have started causing obstruction

to his possession and hence, he is constrained to file a Suit for

declaration and injunction.

5. The Petitioners have resisted the Suit and the application for

interim injunction by filing their written statement with a counter-claim

contending, inter alia, that, there was no such partition, as alleged by the

Respondent, on 4th March 2009. The said document was clearly

executed only for the purpose of obtaining the Bank loan. Hence, there

was no question of Respondent getting exclusive rights or possession

over the suit land on the basis of the said document. Further it was

submitted by the Petitioners that, a Partition Deed was effected between

the Petitioners, Respondent and their father on 4th May 2009 and the

suit property is given to the share of the Petitioners in the said partition.

The Petitioners are in possession of the suit property and, therefore, the

Respondent cannot be entitled to get any relief of declaration and

injunction. His application for interim injunction, therefore, is also

required to be rejected.

6. The learned Trial Court, after hearing the parties and on perusal of

the documentary evidence, was pleased to hold that, prima facie, the

Mutation Entry No.8204 and the 'Document of Partition' dated 4 th March

2009 were sufficient to show that the Respondent is in possession of the

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suit land. In addition thereto, it was also held that, the bills of the Grapes

Garden cultivated in the suit land were produced by the Respondent to

show his possession thereof and hence, the Trial Court granted the relief

of interim injunction in favour of the Respondent.

7. This finding is confirmed by the Appellate Court while dismissing

the Appeal preferred by the Petitioners.

8. While challenging this concurrent finding of the Trial Court and

the Appellate Court, the submission of learned counsel for the

Petitioners is that, both, the Trial Court and the Appellate Court have

committed a factual error in holding that the document dated 4 th March

2009 is a 'Partition Deed', when the document clearly mentions that it

was a 'Document of Partition' of a temporary nature, in order to obtain

the Bank loan. It is submitted that, the said document was clearly only

between the two brothers and the other brothers and father are the

consenting parties and hence, this Deed cannot be a Partition Deed. The

real Partition Deed was effected on 4 th May 2009 and on the basis

thereof, it is the Petitioners to whom the suit land is allotted and they

are in possession of the same. It is urged that, both, the Trial Court and

the Appellate Court have given undue importance to the Mutation Entry

No.8204; when on the basis of such mutation entry, no partition can be

effected in the joint family properties. According to learned counsel for

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the Petitioners, the Trial Court has not even waited till the report of the

Court Commissioner was received and the Appellate Court has not

appreciated the Report of the Court Commissioner properly, though it

shows that, it is the Petitioners, who are in possession of the suit land.

Thus, according to learned counsel for the Petitioners, though there is a

concurrent finding of fact arrived at by the Trial Court and the Appellate

Court, as it is perverse in the sense that it is not considering properly

the documentary evidence on record, in the light of the legal position,

the said finding of fact needs to be set aside, by allowing this Writ

Petition.

9. Per contra, learned counsel for the Respondent has supported the

impugned order of the Trial Court and confirmed by the Appellate Court

by pointing out that, at the stage of deciding the application for interim

injunction, the Court has to consider prima facie case only and the prima

face case definitely stands in favour of the Respondnt. Because, apart

from the 'Document of Partition' dated 4 th March 2009, there is also

Mutation Entry No.8204 effected in the name of the Respondent, which

shows that it is the Respondent, who is in possession of the suit land. The

Report of the Court Commissioner cannot be considered for deciding as

to who is in possession of the suit land, as the Court Commissioner

cannot be appointed for the said purpose. Further it is submitted that,

the Appellate Court has, even then, considered the Court Commissioner's

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Report and found that the Panchas, in whose presence the alleged

Panchanama was made by the Court Commissioner, have not supported

the case. They have stated that, actual Panchanama was not drawn in

their presence and, thus, it is urged that, not only the Mutation Entry,

but also having regard to the bills produced by the Respondent showing

that he has cultivated the Grapes Garden in the suit land, both the

Courts below have rightly held that the Respondent is in actual

possession of the suit land and this Court, therefore, should be slow in

interfering with the impugned order passed by the Trial Court and

confirmed by the Appellate Court.

10. At this stage, learned counsel for the Respondent also points out

that, the Petitioners have filed application for review of the order passed

below "Exhibit-5" before the Trial Court, after receipt of the Court

Commissioner's Report, and the said Review Application is rejected by

the Trial Court on 16th November 2017.

11. Having considered the submissions advanced at bar by learned

counsel for the Petitioners and learned counsel for the Respondent, at

the outset itself, it has to be held that, in case of a discretionary relief

like temporary injunction, when, both, the Trial Court and the Appellate

Court have exercised the said discretion and the view taken by both the

Courts below is a possible view of the matter, then, as held in the case of

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Wander Ltd. & Anr. vs. Antox India P. Ltd., 1990 (supp.) SCC 727 , this

Court should restrain itself from interfering in the discretion exercised

by the Trial Court, merely because this 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 inter- locutory 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

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interference with the trial Court's exercise of discretion."

12. Apart from that, here in the case, the documentary evidence,

which is produced on record, definitely tilts the prima facie case in

favour of the Respondent. In the first place, there is Mutation Entry

No.8204, which is effected on the basis of the 'Document of Partition'

dated 4th March 2009, entering the name of the Respondent to the suit

land. The said Mutation Entry was made not only on the application

given by the Respondent alone, but by all the brothers and the father

also. Since then, name of the Respondent alone is appearing in "7/12

Extract" of the suit land.

13. The Apex Court, in the case of Digambar Adhar Patil Vs. Devram

Girdhar Patil (Dead) and Anr., AIR 1995 SC 1728 , relied upon by

learned counsel for the Respondent, has held that, "for deciding the

factum of partition between two brothers, entries in the 'Record of

Rights' maintained in official course of business is a relevant piece of

evidence and it is not necessary that the partition should be effected by

registered Partition Deed only".

14. Further, the learned counsel for the Respondent has also relied

upon the Judgment of this Court in the case of Shamrao Ganpat

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Chintamani Vs. Kakasaheb Laxman Gorde, 2008(2) ALL MR 118 ,

wherein also, it was held that, "the necessary presumption, as required

under Section 157 of the Land Revenue Code stands in favour of the

mutations which are certified and the mutation entry is prima facie

proof of possession over the suit land".

15. In the instant case, admittedly, such Mutation Entry, which is

effected on the application given by all the four brothers and father,

stands in the name of the Respondent to prove his prima facie

possession over the suit land.

16. It may be true, that the 'Document of Partition' dated 4th March

2009 shows that, it was of a temporary nature and effected for the

purpose of obtaining the Bank loan; but then, the fact remains that, the

said 'Partition Deed' was acted upon and, accordingly, the mutation

entry was also made and till the date, the said mutation entry is not

challenged or cancelled.

17. As regards the 'Document of Partition' dated 4 th May 2009, on

which the Petitioners are relying upon, there is nothing on record to

show that this 'Partition Deed' is acted upon. It is also required to be

proved properly. As observed by both the Courts below, it does not

mention the earlier 'Document of Partition' dated 4 th March 2009.

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Petitioners have also produced on record one more document of

'Memorandum of Partition' dated 13th July 2012. However, it is not

signed by any of the parties. Thus, whatever the 'Documents of

Partition', which are produced on record by the Petitioners, are yet to be

proved at the time of trial. But, at this prima facie stage, the 'Document

of Partition' dated 4th March 2009, the execution of which is not disputed

by the Petitioners also, needs to be relied upon, as it is acted upon and

the mutation entry is also made accordingly. One need not enter into the

Report of the Court Commissioner to decide the factum of possession, as

his Report cannot decide who is in possession of the suit property;

especially, when the Panchas thereon are filing affidavits and counter-

affidavits. Hence, the Appellate Court has rightly refused to place

reliance on such Court Commissioner's Report.

18. For the present, it is sufficient that, the Mutation Entry No.8204

made on the basis of the 'Document of Partition' dated 4 th March 2009, to

which the Petitioners were very much the parties, stands in the name of

the Respondent, showing prima facie that, he is in possession of the said

land. In addition thereto, there are also the bills of sugarcane, fertilizers

and other documents produced by the Respondent to show his actual

and physical possession over the suit land.

19. Therefore, the view taken by the Trial Court and confirmed by the

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Appellate Court being a possible view and being based on material

produced before it, this Court cannot interfere in the said view. The Writ

Petition, therefore, being without merits, stands dismissed.

20. On the request of learned counsel for the Petitioners, it is clarified

that whatever observations made here-in-above are only for the purpose

of deciding this Petition and the Trial Court is not to be influenced by

them at the time of final hearing of the Suit.

[DR. SHALINI PHANSALKAR-JOSHI, J.]

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