Atul Arjun Gophane And Another vs Naushad Basha Basale And Another
2021 Latest Caselaw 1257 Bom

                                                                             WP-684-20.odt




              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         BENCH AT AURANGABAD

                           WRIT PETITION NO. 684 OF 2020

1. Atul Arjun Gophane
   Age: 40 years, Occu.: Agri.,
   R/o Bhothra, Tq. Paranda,
   Dist. Osmanabad

2. Supriya Pramod Kadam
   Age: 38 years, Occu.: Household,
   R/o As above                                          ..PETITIONERS

      VERSUS

1. Naushad Basha Basale
   Age: 48 years, Occu.: Agri.,
   R/o Agarkar Galli, Paranda,
   Tq. Paranda, Dist. Osmanabad

2. Farjana Naushad Basale
   Age: 45 years, Occu.; Household,
   R/o As above                                          ..RESPONDENTS

                                      ....
Mr. Abhijit S. More, Advocate for petitioners
Mr. Anant R. Devkate, Advocate for respondents
                                      ....

                                      CORAM          : R.G. AVACHAT, J.
                                      RESERVED ON   : 11th JANUARY, 2021
                                      PRONOUNCED ON : 19th JANUARY, 2021

JUDGMENT :

Rule. Rule made returnable forthwith. Heard learned counsel for

the parties finally, by consent.

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2. The challenge in this writ petition is to order dated 13th November,

2019 passed by District Judge-1, Bhoom in Miscellaneous Civil Appeal No. 9

of 2018. By the impugned order, the petitioners (original defendants) have

temporarily been restrained from obstructing the respondents' (original

plaintiffs) possession over the suit properties.

3. The respondents' claim to have been in possession of the suit

properties, particularly described in paragraph no.1 of the plaint (Regular

Civil Suit No. 1118 of 2017) by virtue of lease deed executed in their favour

by father of the petitioners.

4. Mr. Abhijit More, learned counsel for the petitioners would submit

that trial court had rightly rejected temporary injunction application moved

by the respondents. The appellate court ought not to have interfered with the

order refusing to grant temporary injunction. Learned counsel would submit

that the revenue record of the suit properties stands in the name of the

petitioners. The appellate court, ought not to have interfered with the trial

court's order when the trial court had exercised it's discretion. There was no

material to upset the order passed by the trial court. In respect of his

contentions, learned counsel has relied on the following authorities :-

Seema Arshad Zaheer and Others Vs. Municipal Corpn. Of Greater Mumbai and Others (2006) 5 SCC 282

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Mohd. Mehtab Khan and Others Vs. Khushnuma Ibrahim and Others (2013) 9 SCC 221

5. Mr. Anant Devkate, learned counsel for the respondents would,

on the other hand, submit that father of the petitioners executed a lease deed

before the notary. He had received a valuable consideration for handing over

possession of the suit properties in favour of the respondents. Petitioner's

father, during his life time, did not obstruct respondents' possession over the

suit properties. It is only on his demise the petitioners got their names

recorded in the revenue record of the suit properties by virtue of succession

and started obstructing respondents' possession. The suit, therefore, came to

be filed. According to learned counsel, the appellate court has rightly

exercised the discretion in favour of the respondents. No interference is,

therefore, called for.

6. Admittedly, the suit properties belonged to father of the

petitioners. He appears to have executed a lease deed in favour of the

respondents for a period of ninety nine years. A copy thereof is on record.

The petitioners admit their father's signature on the lease deed. According to

them, their father's signature was obtained on a blank stamp paper. Such

defense imposes burden of proof on the petitioners. Admittedly, two other

properties belonging to father of the petitioners have been sold by him to the

respondents for a valuable consideration. Before the trial court, the attesting

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witnesses to the lease deed have filed their affidavit reiterating the averments

in the lease deed. True, the lease deed is an unregistered document. The

same, however, could be looked into for collateral purpose so as to ascertain

factum of possession. The recitals of the lease deed indicate the father of the

petitioners to have parted with possession of the suit properties in favour of

the respondents. True, the revenue record stands in the name of the

respondents. The trial court refuses to rely on the lease deed on the ground

of having been unregistered document. It relied on the revenue record

indicating the respondents to be in possession of the suit properties.

7. Since the petitioners admit their father's signature on the lease

deed, whereunder he parted with possession of the suit properties in favour

of the respondents, the appellate court has rightly observed the petitioners to

have not been in possession of the suit properties. True, the appellate court

normally should not interfere with the exercise of discretion by the trial court

(Mohd. Mehtab Khan and Others (supra)).

8. In my view, since the recital of the lease deed run counter to the

claim of the petitioners, the appellate court was justified in interfering with

the order passed by the trial court refusing to grant ad-interim injunction. No

interference with the impugned order is, therefore, called for.

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9. In the result, writ petition fails. Same is dismissed. Trial court is

directed to expedite hearing of the suit on and decide the same, preferably

within a period of twelve months. Needless to mention, the trial court shall

not be influenced by the observations made hereinabove. Rule is discharged.

( R.G. AVACHAT, J. ) SSD

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