Sarjerao Nathu Bangar And Others vs Namdeo Keru Bangar And Another
2021 Latest Caselaw 2032 Bom

                                       1          Writ Petition No. 9871 of 2019.odt



        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               BENCH AT AURANGABAD
                 WRIT PETITION NO. 9871 OF 2019
                           WITH
                 CIVIL APPLICATION NO. 6945 OF 2020

1.       Sarjerao S/o Nathu Bangar,
         Age : 61 Years, Occ. Agriculture,

2.       Baban S/o Nathu Bangar,
         Age : 59 Years, Occ. Agriculture,

3.       Sabhakar S/o Nathu Bangar,
         Age : 55 Years, Occ. Agriculture

4.      Housabai W/o Sarjerao Bangar,
        Age : 36 Years, Occ. Agriculture,

5.      Madhukar S/o Sarjerao Bangar,
        Age : 24 Years, Occ. Agriculture

6.      Dilip S/o sarjerao Bangar,
        Age : 24 Years, Occ. Agriculture,

        All resident of Waghira, Tq. Patoda,
        District Beed.

7.      Ashabai W/o Dadasaheb Nagargoje,
        Age : 33 Years, Occ. Agri & Household,
        R/o. Yewalawadi Tq. Patoda,
        District : Beed.

8.      Ayodhya W/o Vitthal Nagargoje,
        Age : 27 Years, Occu. Agri. & Household,
        R/o. As above.                           ..PETITIONERS
                                             (Orig. Defendants)
          VERSUS

1.      Namdeo S/o Keru Bangar,
        Age : 68 Years, Occ. Agriculture,

2.      Kundalik S/o Keru Bangar,
        Age : 72 Years, Occu. Agriculture,
        Both resident of Waghira Tq. Patoda,
        District : Beed.                               ..RESPONDENTS


::: Uploaded on - 01/02/2021                 ::: Downloaded on - 25/08/2021 17:08:17 :::
                                        2              Writ Petition No. 9871 of 2019.odt



                                                            (Orig. Plaintifs)


                              ....
        Advocate for the Petitioners : Mr. S.V. Dixit
        Advocate for respondent Nos. 1 & 2 : Miss Priyanka R.
                                                Deshpande
                                ....


                               CORAM : MANGESH S. PATIL, J.

                               Reserved on : 06.01.2021
                               Pronounced on :01/02/2021

JUDGMENT:

Heard. Rule. The rule is made returnable forthwith. The

learned Advocate for the respondents waives service. With the

consent of both the sides, the matter is heard fnally at the

state of admission.

2. The petitioners are the original defendants, in a suit fled

by respondents bearing Regular Civil Suit No. 230 of 2016

pending on the fle of the learned Civil Judge, Junior Division,

Patoda.

3. The respondents claim that one Manaji was the common

ancestor having 4 sons, two of them had died issueless and

only Vithal and Panduarng survived. The petitioners are the

heirs of Pandurang and the respondents are the heirs of

Vitthal. Manaji was the exclusive owner of the lands bearing

Survey No. 157 and 158, totally aggregating 15 Hector, 71 Are.

They further averred that these lands were further sub-divided

157-A and 157-AA and 158-A and 158-AA. They are the

owners in exclusive possession of 157-AA and 158-AA, totally

admeasuring 7 Hector 85 Are. This property is being

described as the suit property. Claiming that the petitioners

are trying to forcibly evict them and are obstructing their

possession over the suit property fled a false suit bearing

Regular Civil Suit No. 206 of 2016 seeking that the entire land

bearing gat No. 540 of which the suit property is half a portion

and perpetual injunction restraining the respondents from

obstructing their possession. Hence, they claim declaration

regarding they being the exclusive owner of the suit property

and perpetual injunction restraining the petitioners from

obstructing their possession therein.

4. By fling an application under Order XXXIX Rule 1 of the

Code of Civil Procedure, the respondents claimed temporary

injunction in terms of the main relief. By the order dated

18.06.2018, the learned Civil Judge rejected the application.

The respondents challenged that order by preferring Misc.

Civil Appeal No. 49 of 2018 and by the impugned Judgment

and order the learned Additional District Judge, quashed and

set-aside the order passed by the learned Civil Judge and

allowed the application for temporary injunction as prayed for.

Hence, this Writ Petition under Article 227 of the Constitution

of India.

5. The learned Advocate Mr. Dixit, for the petitioners would

submit that the order under challenge is grossly erroneous

and demonstrates utter lack of application of mind while

deciding an appeal under Section 104 read with Order XLIII of

the Code of Civil Procedure. Without there being any apparent

illegality committed by the learned Civil Judge in refusing the

temporary injunction, the impugned order substitutes the

discretion which is not permissible in law.

6. The learned Advocate Mr. Dixit, would submit that

already the petitioners had fled Regular Civil Suit No. 206

of 2016 seeking declaration about the entire land Gut No.

540, of which the present suit property is half a portion,

is exclusively owned and possessed by them.

Unfortunately, they could not succeed in getting an order

of injunction protecting their possession which Judgment

and order they have challenged in the Appeal which is

still pending before the District Court. He would further

point out that since the respondents have fled the suit at

later point of time, the petitioners sought to stay it under

Section 10 of the Code of Civil Procedure. The learned Civil

Judge allowed their application and directed Regular Civil Suit

No 230 of 2016 of the respondents to be stayed. The challenge

of the respondents to that order has been refuted by this Court

in Writ Petition No. 2318 of 2018 by the order dated

12.03.2018. The learned Advocate would submit that in spite

of such state of afairs, the respondents claimed temporary

injunction and by the impugned order the learned District

Judge has allowed that application even though the suit of the

respondents has been stayed.

7. On facts, the learned Advocate Mr. Dixit, would submit

that the respondents are not at all related to the petitioners.

Respondents' ancestor was staying in the suit property as

servant of the petitioners' ancestor. There was no sub-division

ever efected of the land survey No. 157 and 158. A letter to

that efect is also produced on record which is issued by the

concerned Dy. Superintendent of Land Record (Exh. 'K'). He

would submit that by resorting to some manipulation of the

revenue record i.e. Khasra Patrak, the respondents could

manage to record their names to the suit property. However,

the possession still continues with the petitioners and ignoring

all such state of afairs, the learned District Judge has held

them entitled to temporary injunction. The impugned

Judgment and order being perverse, arbitrary and capricious

be quashed and set-aside.

8. The learned Advocate for the respondents would submit

that even if their suit was stayed by resorting to the provision

of Section 10 of the Code of Civil Procedure that provision does

not preclude the trial Court from passing interlocutory orders.

She would cite the decision of the Supreme Court in the case

of Indian Bank Vs. Maharashtra State Co-operative

Marketing Federation Limited ; AIR 1998 S.C. 1952. She

would therefore, submit that there is no question of any

jurisdictional error in entertaining an application for temporary

injunction by the trial Court and the Appellate Court.

9. The learned Advocate for the respondents would then

submit that there is long standing revenue record in favour of

the respondents which has a presumptive value under the

provisions of Maharashtra Land Revenue Code. Though, the

petitioners are averring that the respondents could get their

name mutated by getting executed sham sale deeds in the

year 1995, there was no immediate challenge/ dispute raised

by the petitioners at an earlier stage. They have fled suit in

the year 2016. At this juncture, such long standing revenue

record coupled with the subsequent transactions and

mutations are sufcient to demonstrate prima facie case in

favour of respondents and obviously the balance of

convenience has been in their favour. Still, ignoring such

factual scenario, the learned Civil Judge had erroneously

refused temporary injunction. The order was grossly perverse

and arbitrary and was rightly interfered with and reversed by

the learned District Judge, in the appeal under Section 104 of

the Code of Civil Procedure. No error is committed by the

learned Additional District Judge in reversing the order of the

trial Court.

10. To begin with, let us consider the preliminary objection

touching the aspect of scope of Section 10 of the Code of Civil

Procedure, which reads thus :-

'' Section 10. Stay of suit - No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the

supreme Court'' Explanation- The pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action.'' (Emphasis supplied)

11. As can be easily appreciated, this provision only

contemplates stay of the 'trial' of the suit and does not intend

to preclude a 'trial' Court from entertaining a suit fled

subsequently and even passing interlocutory orders. It is trite

that a trial of the suit commences with the framing of the

issues. That stage has not reached in the respondents' suit.

Both the Court below have not committed any illegality in

entertaining and deciding the application of the respondents

for temporary injunction. Without indulging in further

discussion, it would be sufce to refer to and rely upon the

decision of the Supreme Court in the case of Indian Bank

(supra). Particularly, the observations in paragraph No. 8

which read thus :-

'' Therefore, the word '' trial'' in Section 10 will have

to be interpreted and construed keeping in mind the

object and nature of that provision and the prohibition to

proceed with the trial of any suit in which the matter in

issue is also directly and substantially in issue in a

previously instituted suit. The object of the prohibition

contained in Section 10 is to prevent the Courts of

concurrent jurisdiction from simultaneously trying two

parallel suits and also to avoid inconsistent fndings on

the matters in issue. The provisions is in the nature of a

rule of procedure and does not afect the jurisdiction of

the Court to entertain and deal with the later suit nor

does it create any substantive right in the matters. It is

not a bar to the institution of a suit. It has been

construed by the Courts as not a bar to the passing of

interlocutory orders such as an order for consolidation of

the later suit with the earlier suit, or appointment of a

Receiver or an injunction or attachment before Judgment.

The course of action which the Court has to follow

according to Section 10 is not to proceed with the '' trial''

of the suit but that does not mean that it cannot deal with

the subsequent suit any more or for any other purpose.

In view of the object and nature of the provision and the

fairly settled legal position with respect to passing of

interlocutory orders it has to be stated that the word '

trial' in Section 10 is not used in its widest sense.''

12. Therefore, the submissions of the learned Advocate for

the petitioners that the Courts below have over looked the

direction under Section 10 to stay the suit is not legally

tenable.

13. Obviously, while exercising the Writ Jurisdiction, this

Court cannot go into all the disputed facts and circumstances

much less at such a nascent stage of the suit. Still, as can be

ex-facie appreciated, though the petitioners are fatly refuting

the respondents to be related to them, even they admitted

that the respondents' ancestor was an agricultural labour

employed by their ancestor and was occupying some portion

of the land for staying there.

14. Apart from such vital stand of the petitioners, the

revenue record, prima facie shows that even the name of the

ancestor of the respondents Keru was recorded against the

land stated to be survey No. 157-AA and 158-AA i.e. the suit

property. The extract of Khasra Patrak prima facie shows that

the land Survey No. 157 and 158 were further divided as 'A'

and 'AA'. The name of Nathu and Keru was recorded to their

corresponding portions ''A'' and ''AA'' respectively and

continued to be so for years together. Though now it is being

pointed out that the department of land record now informs

that the land Survey No. 157 and 158 were never sub-divided,

it is a matter which will have to be pondered upon during the

course of the trial. The fact remains that for years together,

the name of the respondents ancestor continued to be

recorded against the suit property and neither the petitioners

nor their ancestors at any point of time made any attempt to

challenge it before fling the suit in the year 2016.

15. Again, the respondents are stated to have purchased a

share of the suit property from its co-sharer Raosaheb under

two sale-deeds in the year 1995 and accordingly even the

Mutation Entries 752 and 753 were efected, whereby the

respondents' name was mutated to the entire suit property.

Though, mutations had taken place in the year 1996, at no

point of time the petitioners sought to challenge it, till they

fled the suit in the year 2016.

16. It is trite that though the revenue record does not create

or destroy title to an immovable property, it does carry a

presumptive value under the provisions of Section 157 under

the Maharashtra Land Revenue Code. This is what precisely

seems to have been clearly over looked by the learned Civil

Judge, who had apparently got swayed away by the fact that

the department of land record has refuted any claim of sub

division of the original land survey Nos. 157 and 158.

17. The learned Civil Judge had also erroneously observed

that the suit property was not identifable for want of

particulars regarding their boundaries which observations were

clearly perverse in as much as a rough sketch as

contemplated under Order VII Rule 3 of the Code of Civil

Procedure was annexed to the plaint.

18. Taking note of such an approach of the learned Civil

Judge, the learned District Judge by the impugned Judgment

and order is justifed in quashing and setting-aside the order of

the trial Court and granting temporary injunction in favour of

the respondents. It was a ft case where the appellate Court

could have exercised the discretion while entertaining an

appeal under Section 104 read with Order XLIII of the Code of

Civil Procedure. No error or illegality committed by the learned

District Judge in passing the Judgment and order under

challenge.

19. The Writ Petition is dismissed.

The rule is discharged.

20. In view of dismissal of Writ Petition, Civil Application No.

6945 of 2020 stands disposed of.

(MANGESH S. PATIL, J.)

21. After pronouncement of the Judgment, the learned

Advocate for the petitioners submits that there was ad-interim

relief operating in favour of the petitioners till date and it may

be extended for sufcient period to enable them to approach

the Supreme Court.

22. Since the ad-interim relief has been in operation till date,

it stands extended for a further period of three weeks.

(MANGESH S. PATIL, J.)

yogesh