Bombay High Court
Shri. Rakesh Rajendrakumar ... vs Badrudin Abbas Patel And Ors on 27 January, 2022
Bench: Amit B. Borkar
agk 1/6 7-aswp13555-2018.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 13555 OF 2018
Rakesh Rajendrakumar Agarwal ... Petitioner
V/s.
Badrudin Abbas Patel & Others ... Respondents
Mr. P.K. Dhakephalkar, Senior Advocate, with Mr. Amol P. Mhatre,
for the Petitioner.
Mr. Sumanth Anchan, with Gaurav Gopal, & Rohit Goyal, i/b Wadia
Ghandy & Co., for Respondent No. 1.
CORAM : AMIT BORKAR, J.
DATE : 27 JANUARY 2022.
(Through Video Conferencing)
P.C. :
The Respondent No. 1(Original Plaintiff) has filed a suit for
declaration and injunction seeking a declaration that agreement
executed in favour of the Petitioner (Original Defendant No. 1) on
21st November 2013 be declared null and void. It is also sought that
the Petitioner be restrained by an order of injunction from creating
third party rights in respect of the suit property and dispossessing the
Plaintiff from the suit property. Along with the said suit, the Plaintiff
filed an application for temporary injunction. The Petitioner filed a
counter-claim along with an application seeking temporary
Digitally signed
by ATUL
ATUL GANESH injunction (Exhibit 35) seeking in following terms:
GANESH KULKARNI
KULKARNI Date:
2022.01.27
17:22:19 +0530 (i) not to disturb possession of the Petitioner over the suit
agk 2/6 7-aswp13555-2018.doc
property;
(ii) restraining the Plaintiff from carrying out construction over
the suit property; and
(iii) seeking injunction against the Plaintiff not to create third
party rights.
2. The learned Trial Court after hearing both the sides allowed
the temporary injunction application below Exhibit 5 filed by the
Plaintiff and rejected temporary injunction application filed along
with counter-claim. Aggrieved by the said order, present Petitioner
filed Miscellaneous Civil Appeal No. 100 of 2018. The learned
District Judge by the impugned order dated 16th October 2018
dismissed the Appeal filed by the Petitioner. The Petitioner being
aggrieved by order dated 16th October 2018 filed present petition.
3. Heard Mr. Dhakephalkar, learned Senior Advocate for the
Petitioner and Mr. Sumanth Anchan for the Respondents.
4. Mr. Dhakephalkar, learned Senior Advocate submitted that the
revenue authorities while entering name of the Petitioner in relation
to the suit property have recorded a finding in favour of the
Petitioner holding that the Plaintiff has no title over the suit
property. He submitted that though the Courts below have relied
upon the finding recorded in earlier proceedings between the parties
wherein it was held that the Plaintiff herein was in possession of the
agk 3/6 7-aswp13555-2018.doc
suit property, the said suit is still pending and the finding in favour of
the Plaintiff is prima facie which has to be confirmed after trial of the
suit and, therefore, the Courts below could not have given
importance to the said finding. He, therefore, submitted that the
Courts below have erred in holding Plaintiff in possession of the
property. He further submitted that as regards prayers (ii) and (iii)
referred above of the temporary injunction application along with
counter claim (Exhibit 35), the Courts below have not adjudicated
upon the said prayers and have rejected the temporary injunction
application of the Petitioner in its entirety.
5. Mr. Anchan, learned Advocate for the Respondents invited my
attention to the findings recorded by the Courts below wherein the
lower Appellate Court and the Trial Court, while deciding the
temporary injunction application in Special Civil Suit No. 90 of
2010, it has been held that the Plaintiff is in possession of the suit
property. He submitted that the order of grant of temporary
injunction holding present Plaintiff in possession of the suit property
is in force as of today. He submitted that the orders of the revenue
authorities has no value while deciding issue of possession as the
revenue authorities were essentially adjudicating upon the issue of
title of the parties. He submitted that there is no inquiry held as
contemplated by Rule 31 of the Maharashtra Land Revenue Rules,
1966 and, therefore, both the Courts have rightly recorded finding of
fact that it is the Plaintiff who is in possession of the suit property.
agk 4/6 7-aswp13555-2018.doc
The learned Advocate for the Respondents tried to invite attention
of this Court to the impugned orders in his attempt to show that
there is adjudication as regards prayers (ii) and (iii) on application
below Exhibit 35. He submitted that both the Courts have
considered all the prayers in application below Exhibit 35 jointly.
6. I have carefully considered the judgments and order passed by
the Courts below. In so far as the issue of possession is concerned,
both the Courts below by relying upon the finding recorded by the
Civil Court in earlier proceedings wherein the present Petitioner and
Respondent No. 1 were parties, had recorded a finding that it is the
Plaintiff who is in possession of the suit property. Though the said
finding is prima facie in nature but unless the suit is decided on
merits, the said finding will be a relevant fact for adjudicating present
dispute. Apart from the finding in earlier proceedings, the present
Petitioner has not placed any document on record to show that he is
in actual possession of the suit property. The orders passed by the
revenue authorities have no bearing to adjudicate upon the issue of
possession between the properties in a substantive suit. Undisputedly
the proceedings between the parties before the revenue authorities
were not under Rule 31 wherein the revenue authorities were
required to visit the site and record a finding as to who is in
possession of the suit property. There is concurrent finding of fact.
7. In the limited jurisdiction under Article 227 of the
agk 5/6 7-aswp13555-2018.doc
Constitution of India, there is no error apparent on the face of record
pointed out to interfere with the concurrent findings of fact. I am,
therefore, satisfied that both the Courts below were justified in
holding prima facie that it is the Plaintiff who is in possession and
have rightly granted injunction protecting possession of the Plaintiff
over the suit property.
8. In so far as remaining two prayers below Exhibit 35 are
concerned, though the Advocate for the Respondents tried his best
to submit that the Courts below have considered all the prayers
jointly, I am satisfied that there is no independent adjudication by
the Courts below in relation to prayers (ii) and (iii) stated above.
Since the reliefs sought by the Petitioner here in were required to be
considered at least prima facie by the Courts below , rejection of the
temporary injunction application below Exhibit 35 without
independent adjudication on each prayer amounts to error apparent
on the face of record . I am, therefore, satisfied that in so far as
prayers (ii) and (iii) stated above needs to be re-considered by the
learned Trial Court. It is, therefore, necessary that the matter be
remanded back to the Trial Court to decide prayers (ii) and (iii) in
the application below Exhibit 35, I pass the following order:
a) Writ Petition is partly allowed;
b) The Judgment and Orders passed by the Courts below
Exhibit 5 to the extent of protecting possession of the
agk 6/6 7-aswp13555-2018.doc
Plaintiff over the suit property is hereby confirmed;
c) In so far as prayers (ii) and (iii) in the application below
Exhibit 35 are concerned, the matter is remanded back to the
learned Trial Court to decide both prayers independently.
The learned Trial Court shall carry out the said exercise as
expeditiously as possible.
9. Writ Petition is disposed of in above terms.
(AMIT BORKAR, J.)
