Bombay High Court

Laxman Narhari Ratnaparkhi vs Narayan Babhanrao Dhas on 2 September, 2021

Bench: V. V. Kankanwadi

                                      (1)


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                 CIVIL APPLICATION NO. 3667 OF 2021
                                 IN
                    SECOND APPEAL NO.9 OF 2020

 Laxman Narhari Ratnaparkhi                              = APPLICANT
                                                         (orig.defendant)

          VERSUS

 Narayan Babhanrao Dhas                                  = RESPONDENT
                                                         (orig.Plaintiff)
                                     -----
 Mr.Satyajit S.Bora,Advocate for Applicant;
 Mr.Phulpagar,Advocate h/for Mr. PR Katneshwarkar, Adv. for
 Respondent.
                                    -----

                                CORAM :      SMT.VIBHA KANKANWADI,J.

                                DATE :       2nd September, 2021.
 PER COURT :-

 1.               Present       application     has     been        filed        by

respondent in the Second Appeal, who is original

defendant, for injunction, restraining the

respondent in the application/original plaintiff,

or anybody claiming through him, from creating any

disturbance to peaceful possession of the applicant

over the suit property, i.e. Gut No.270,

admeasuring 80 Ares, situated at village Chikhali,

Tq. Vasmath, District Hingoli during pendency of

the Second Appeal No.9/2020.

2. Heard learned Advocates appearing for the

respective parties.

3. The appellant in the second appeal -

original plaintiff filed Special Civil Suit No.

15/2013 before Civil Judge, Senior Division,

Basmathnagar for specific performance of contract

and perpetual injunction. That suit came to be

decreed on 16.4.2016. The original defendant-

present applicant, challenged the said decree by

filing Regular Civil Appeal No.25/2016 before the

District Judge-1, Basmathnagar. The said appeal

came to be allowed. The judgment and decree passed

by the learned Trial Judge was set aside. The

Special Civil Suit was dismissed. However, it is

to be noted that during pendency of the first

Appeal, the original plaintiff had filed Regular

Darkhast No.28/2017 and the sale-deed in respect of

the suit land was got executed in the name of the

plaintiff on 24.7.2019. It was executed through

Court and, therefore, taking into consideration the

execution of the said sale-deed during the pendency

of the appeal and the appeal was being allowed, the

plaintiff was directed to re-convey the suit land

in favour of the defendant on or before 30 th

January, 2020. The plaintiff was held to be

entitled to get refund of the amount of

Rs.6,00,000/- with accrued interest, if any,

deposited by him before the said Court. The

original plaintiff filed the Second Appeal and this

Court, by order dated 14.1.2020, admitted the

Second Appeal by framing substantial questions of

law.

4. Further, by separate order on Civil

Application No.380/2020, this Court on 14.1.2020,

stayed the judgment and decree passed by the

learned first Appellate Court till final hearing

and disposal of the Second Appeal.

5. The applicant-original defendant contends

that taking disadvantage of the order, the

appellant/Respondent (original plaintiff) herein,

is disturbing to the possession over the suit

property. The original plaintiff was never put in

possession of the suit land by the defendant prior

to the agreement to sell or on the date when the

agreement was entered into. Even if we consider

the sale-deed that was executed by the

Superintendent in favour of the plaintiff, it says

that he has right to recover the possession through

this document of sale-deed. There is no mention

about handing over of possession by the

Superintendent of the Court to the plaintiff on the

date of the sale-deed. Therefore, till disposal of

the Second Appeal, the respondent herein either

himself or through anybody else, should be

restrained from disturbing the possession of the

applicant over the suit land. These are the

submissions on behalf of the applicant.

6. Per contra, the respondent herein has

filed an affidavit in reply and submitted that

neither the Trial Court nor the Appellate Court had

framed issue in respect of possession and the

injunction that was prayed by him in the suit was

in respect of not to create any third party

interest. Now the applicant cannot seek injunction

to protect his alleged possession as he had not

filed any counter-claim. It is stated that if the

sale-deed is taken into consideration then the

present respondent is owner of the suit property.

The original defendant has no authority to continue

to be in possession of the suit property. Further,

it can be seen that the present applicant with

other persons had thrown acid on the respondent

and, therefore, an offence bearing FIR No.294 has

been registered on 10.10.2019 with Police Station,

Hatta. The present applicant had threatened the

respondent with dire consequences. Under such

circumstance, when the applicant has not come with

clean hands, order of injunction cannot be passed

in his favour.

7. At the outset, it is to be noted from the

plaint that what was prayed was decree for specific

performance of the contract in favour of the

plaintiff by the defendant by directing him to

perform his part of the contract as per the

agreement dated 4.3.2013. The second prayer was in

respect of injunction against the defendant from

creating any third party interest. Alternative

prayer was for refund of the earnest amount with

interest. There was absolutely no prayer for

possession of the suit property. Further, the

plaint does not contain recital that he was put in

possession of the property on the date of the

agreement. The affidavit-in-chief of the plaintiff

was nothing but replica of the plaint. When the

possession was not claimed by the plaintiff, there

was no question of denial of the same in the

written statement by the defendant. It can also be

seen that after perusal of the agreement, which was

put to prove, the courts below have not come to the

conclusion that the plaintiff was put in possession

of the suit property on the date of the agreement

to sell. There was no question of framing any issue

in respect of the possession. Same position

continued before the first Appellate Court. The

first Appellate Court has also not observed that

the plaintiff was put in possession on the basis of

the agreement to sell. During the pendency of the

first Appeal, it appears that the plaintiff has got

the decree executed through the Court. In fact,

that is also a surprising fact. A specific

application for stay was filed before the first

Appellate Court at Exh.5 The Roznama shows that

that application came to be allowed on 26.4.2019

and in spite of that, it appears that the Executing

Court proceeded further and through the

Superintendent of its Court, executed the sale-deed

dated 24.7.2019 in favour of the appellant. When

the order was passed on 26.4.2019 and the Roznama

says so; yet it appears that again on 17.6.2019,

the Roznama says that arguments were heard on

Exhibit-5 again and it came to be rejected. The

Roznama of the first Appellate Court appears to be,

therefore, misleading. Yet, if we consider the

sale-deed executed on 24.7.2019 by the

Superintendent of the Court in favour of the

plaintiff, it says thus, -

" lnjhy tehuhpk rkck rqEgkyk U;k;ky;hu nLr vk/kkjs ?ks.;kpk vf/kdkj jkghy- lnjhy feGdr xgk.k] nku] fodzh ukgh] dks.kkps dqG ukgh- ;k ys[kk vk/kkjs rqEgkl eglqyh vfkHkys[kke/;s uksanh ?ks.;kpk gDd jkghy-"

There is no recital regarding handing over of

possession in favour of the plaintiff in the said

sale-deed. Unless possession would have been got

from the present applicant, it could not have been

handed over to the present respondent. Therefore,

there is sufficient material before this Court to

arrive at a conclusion that at present, the

applicant herein is in possession of the suit land.

The way and manner in which the present respondent

has acted would prove the apprehension in the mind

of the applicant. So also lodging of the offence,

referred to above, is another outcome. When the