Leelabai Prakash Alias Prashant ... vs Anna Jayaji Pagare
2021 Latest Caselaw 12318 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                          WRIT PETITION NO. 8976 OF 2021


Leelabai w/o Prakash @ Prashant Jagtap,
Age : 58 years, Occu. Household,
R/o at present Flat No.1501,
Building No.10, P.W.D. Ground,
Govt. Colony, Chhada Nagar,
Mankhurd Link Road,                                          PETITIONER
Ghatkopar East, Mumbai - 400 077                          (Orig. Defendant)

       VERSUS

Anna Jayaji Pagare,
Age : 74 years, Occu. Agri.,
R/o Shivoor, Tq. Vaijapur,                                   RESPONDENT
District Aurangabad                                         (Orig. Plaintiff)

                                      ----
               Mr. Laxman K. Pradhan, Advocate for the petitioner
                Mr. Punit S. Mehta, Advocate for the respondent
                                      ----

                                    CORAM :    MANGESH S. PATIL, J.

DATE : 01.09.2021

ORAL JUDGMENT :

Heard.

2. Rule. The Rule is made returnable forthwith. With the

consent of the learned Advocates for the parties, the matter is heard finally

at the stage of admission.

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3. The petitioner, who happens to be the original defendant in a

suit filed by the respondent for specific performance of an agreement stated

to be dated 26.05.1977, is impugning the order passed by the learned District

Judge in the latter's Misc. Civil Appeal No.03/2020, thereby allowing the

appeal and setting aside the order passed on his application for temporary

injunction (Exh-5) rejecting it and instead, allowing the application and

issuing temporary injunction restraining her from disturbing his possession

over the suit property and from creating third party interest.

4. The learned Advocate for the petitioner would submit that

though the respondent has been seeking specific performance of the

agreement, the petitioner has specifically denied about her mother having

ever agreed to sell the property to him. The document dated 26.05.1977

being relied upon by the respondent is, in fact, an affidavit sworn before the

Tahsildar. He would further submit that the petitioner is the only daughter of

the deceased. She alongwith the deceased have been staying in Mumbai and

it is not clear as to how these documents have been brought into existence.

The respondent is not even aware about the exact date of death of her

mother. He says that she died on 12.08.1989 when, in fact, she died on

22.11.1983. After demise of mother, the petitioner's name was mutated in

the revenue record and the respondent had never objected to it. She has been

in continuous possession of the suit property. The learned Civil Judge had

borne in mind all these facts and circumstances and had rightly used his

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discretion in refusing to grant temporary injunction. The order was not

perverse or arbitrary and ought not to have been interfered with in the

appeal. The learned Advocate would also place reliance on the judgment of

the Supreme Court, dated 06.01.2020 in the case of Ambalal Sarabhai

Enterprise Limited Vs. KS Infraspace LLP Limited and another; Civil Appeal

No.9346 of 2019 (Arising out of SLP (Civil) No.23194 of 2019) and

connected matters.

5. The learned Advocate for the respondent would submit that

though the document dated 26.05.1977 is in the form of an affidavit, the

subsequent Bharna Pawati dated 25.06.1982 clearly recites the previous

document and further is in tune with the agreement expressing interest to

sell the suit property. He would further point out that there is a specific

recital in this Bharna Pawati about confirmation of delivery of possession. He

would then submit that pursuant to such agreement, Mutation Entry No.1769

has also been certified in the name of the respondent way back in the year

1984. His name now appears in the other rights column in the revenue

record of the suit property. Neither the petitioner nor her mother had ever

disputed it. The learned Advocate would then submit that as can be seen

from the recitals of Bharna Pawati as also earlier affidavit, it was for the

deceased mother of the petitioner to obtain necessary permission for effecting

sale. The respondent was rightly waiting for the permission to be obtained

and having found that the petitioner is refusing to execute the sale-deed, has

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filed the suit for specific performance. Though the revenue entries do not

create title or right, long standing revenue entries have presumptive value.

The learned Civil Judge had overlooked all these clinching circumstances

and had exercised discretion improperly. All these facts and circumstances

have been clearly borne in mind by the Appellate Court and has rightly

interfered with and reversed the order.

6. I have carefully gone through the papers and considered the rival

submissions.

7. True it is that though the respondent has propounded an

agreement of the year 1977, but has filed suit for specific performance in the

year 2018. In my considered view, when the affidavit dated 26.05.1977 and

the subsequent Bharna Pawati dated 26.05.1982 specifically speak about the

permission to be obtained for executing the sale-deed, the delay, at this

juncture, cannot be looked into and will have to be left to be duly considered

at the trial.

8. So far as the aspect of possession is concerned, though the

affidavit dated 26.05.1977 does not refer to it, the Bharna Pawati

specifically recites regarding confirmation of the pre-existing possession.

Again, on the basis of such an agreement, Mutation Entry No.1769 has been

certified in the name of the respondent and his name appears in the other

rights column since the year 1984. Though the revenue record is meant for

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fiscal purposes and cannot confer title, it does have a presumptive value.

There is no record to show that the petitioner has ever challenged the

mutation entry till filing of the suit. According to the learned Advocate for

the petitioner that challenge is put now. The fact remains that on the basis of

the selfsame agreement, the mutation entry was effected in the name of the

respondent, which has continued for years together.

9. All these facts and circumstances clearly indicate that the

respondent does have a prima facie case and balance of convenience in his

favour and would have been put to irreparable loss if the temporary

injunction was not granted. All these material facts and circumstances were

clearly overlooked by the learned Civil Judge.

10. Bearing in mind the limited scope for interference, the learned

Judge of the appellate Court has rightly considered the aforementioned facts

and circumstances in demonstrating as to how the order passed by the Civil

Judge was perverse, arbitrary and capricious and empowered him to cause

interference while exercising limited jurisdiction.

11. Reliance placed by the learned Advocate for the petitioner on the

observations in the decision in the case of Ambalal Sarabhai Enterprise

Limited (supra), were clearly made in the peculiar facts and circumstances

obtaining before the Supreme Court and would not be of any help to the

petitioner.

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12.              There is no merit in the Writ Petition. It is dismissed.         The Rule

is discharged.


                                                       [MANGESH S. PATIL]
                                                           JUDGE



npj/WP8976-2021