Ravindra Onkar Patil And Another vs Shilabai Uttambhai Patil And ...
2022 Latest Caselaw 6283 Bom

                                         1                     WP / 6907 / 2022


          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                      951 WRIT PETITION NO. 6907 OF 2022

                    RAVINDRA ONKAR PATIL AND ANOTHER
                                 VERSUS
                   SHILABAI UTTAMBHAI PATIL AND OTHERS

                                     ...
               Advocate for Petitioners : Mr. Shah Subodh P.
        Advocate for the respondents : Mr. R.N. Dhorde, Sr. Advocate
                                       h/f. Mr. V.R. Dhorde
                                     ...

                                CORAM        : MANGESH S. PATIL, J.

                                DATE         : 5 JULY 2022

ORAL ORDER :

Heard. Rule. Rule made returnable forthwith. Mr. Dhorde

waives service. At the joint request the matter is taken up for disposal

at the stage of admission.

2. The petitioners are the original plaintiffs who had filed a

suit for declaration about being the tenants in the suit properties and for

perpetual injunction restraining the respondents - defendants from

obstructing their possession. Both the sides had filed applications for

temporary injunction. The trial court granted the temporary injunction in

favour of the petitioners and rejected the application of the

respondents. Both the sides challenged the common order by

separate appeals. The lower appellate court has quashed, set aside

and reversed the order of the trial court. It has refused to confirm

injunction in favour of the petitioners but granted it in favour of the

respondents.

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3. The learned advocate Mr. Shah would strenuously submit

that it is a suit for injunction to protect possession. There was enough

material on the record to substantiate their claim of being in possession

of the suit properties. The question of title was irrelevant. The

respondents without putting up any counter claim sought temporary

injunction against the petitioners to the effect that they shall not

obstruct their possession, however, no such relief was available to be

had in view of the peculiar wording of clause (a) of Order XXXIX Rule 1

of the Code of Civil Procedure, as interpreted by this court in the matter

of Nanasaheb S/o Sakharam Bhalekar Vs. Dattu S/o Dhondiba

Bhalekar and others; 1991 Mh.L.J. 685. He would submit that the

discretion that was exercised by the trial court was judicious. There

was no perversity or arbitrariness. The lower appellate court without

pointing out as to how the discretion exercised by the trial court was

misplaced, has undertaken a fresh scrutiny and substituted his

discretion in the place exercised by the trial court. Such a course was

not available. The order of the trial court was neither perverse nor

arbitrary and the lower appellate court in an appeal under section 104

r/w. Order XLIII of the Code of Civil Procedure could not have caused

any interference.

4. Learned advocate Mr. Shah would further submit that

in-fact the observations and conclusions drawn by the appellate court

are palpably perverse and clearly ignore the material on the record. It

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also does not refer to the circumstances indicating possession of the

petitioners over the suit properties.

5. Learned senior advocate Mr. Dhorde for the respondents

supports the order under challenge. He would submit that the

circumstances relied upon by the petitioners and the trial court have

been rightly met by the lower appellate court. The petitioners

themselves are unsure as to the stand to be taken. Initially, they

claimed to be the owner of the suit properties. While filing the suit, they

changed their version and claimed to be tenants. He would further

submit that apart from the fact that the issue regarding tenancy cannot

be gone into by a civil court, the petitioners had approached the

authorities under the Maharashtra Tenancy and Agricultural Lands Act.

Their claim of being tenants has been turned down. In view of such

inconsistent stands being taken by the petitioners, they were not

entitled to claim any discretionary relief. The lower appellate court has

rightly caused interference and reversed the order.

6. I have carefully considered the rival submissions and

perused the papers. It is quite apparent that for whatever reasons, the

petitioners have now changed their stand and merely claim to be

tenants in the suit properties. This implies that they admit the title of

the respondents no. 1 to 3 who are real sisters of the petitioner no. 1.

7. It is trite that in such kind of matters, the evidence

regarding possession is vital. Even a trespasser or a person in settled

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possession of the property is entitled to hold the possession so long as

he is not dis-possessed by following the due process of law.

8. Though there have been consistent revenue entries

indicating ownership and possession of the respondents no. 1 to 3 for

years together, the proceedings in the form of change in revenue

entries was initiated. Talathi had submitted the prescribed information

to the Tahsildar in a requisite form mentioning that the petitioners were

in possession. Though Tahsildar and thereafter even the Sub Divisional

Officer specifically concluded that the respondents no. 1 to 3 were the

owners of the property, the conclusion drawn by Tahsildar that the

petitioners were in possession has not been reversed by the learned

Sub Divisional Officer.

9. Pertinently, though the fact has been subsequently denied

in the written statement of the respondent no. 4, the statement of

adjoining owners recorded before the Tahsildar purportedly

demonstrates that even the respondent no. 4 was a signatory and

admitted petitioners' possession over the suit properties. Except the

denial in the written statement, neither the respondents no. 1 to 3

independently nor even the respondent no. 4 ever seem to have raised

any objection in respect of this circumstance. At this juncture, the

conclusion drawn by the Tahsildar that the petitioners were in

possession though they were not the owners of the suit properties

stands as it is.

5 WP / 6907 / 2022

10. The lower appellate court has clearly misread this piece of

evidence. In spite of a specific conclusion drawn by the Tahsildar, the

learned Judge has concluded that Tahsildar had held the petitioners to

be not in possession.

11. The afore-mentioned circumstances are indicative of the

fact that even if the petitioners prima facie are unable to demonstrate

any right in them to hold back the possession of the suit property, at

this stage of the proceeding even this much material was indeed

sufficient to exercise the discretion in favour of the petitioners. The trial

court had exercised it for the reasons recorded in the order.

By no stretch of imagination, the conclusion drawn by the trial court

could be said to be either perverse, arbitrary or capricious.

12. It is trite that the courts exercising powers under section

104 r/w. Order XLIII of the Code of Civil Procedure have inherent

limitation. They can cause interference only if the order passed by the

lower court is perverse or arbitrary and not otherwise. It was therefore

imperative for the lower appellate court to have objectively

demonstrated as to how the order of the trial court granting injunction

to the petitioners was perverse or arbitrary. Without demonstrating it, it

had no jurisdiction to cause any interference.

13. As far as the relief of temporary injunction being claimed

by the respondents, admittedly, there is no counter claim. In the

petitioners' suit, they are claiming temporary injunction not to obstruct

6 WP / 6907 / 2022

their possession. Going by the wordings of clauses (a), (b) and (c) of

Rule 1 of Order XXXIX of the Code of Civil Procedure, there is a

marked distinction as to the circumstances under which the parties to a

suit can claim injunction. It is only under clause (a) that defendant

would be entitled to claim temporary injunction to protect the suit

properties. It is only when the property in dispute is in danger of being

wasted, damaged or alienated that the defendant can claim temporary

injunction. The relief of injunction as regards protection of possession is

concerned it falls under clause (c). Only the plaintiff is entitled to claim

temporary injunction. This is what has been laid down by this court in

the matter of Nanasaheb V. Dattu (supra).

14. Without understanding the niceties of such provisions, the

learned Judge of the lower appellate Court has even illegally set aside

the order of the trial court refusing temporary injunction granted to the

respondents - defendants.

15. The writ petition is allowed.

16. The judgment and order passed by the lower appellate

court is quashed and set aside and the one passed by the trial court is

restored.

17. At this juncture, the learned senior advocate Mr. Dhorde

for the respondents submits that the lower appellate court had directed

the parties to maintain status quo which order was in operation from

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24-06-2022 till 04-07-2022 and the same may be continued till the

respondents approach the Supreme Court.

18. The learned advocate Mr. Shah strenuously opposes the

request. He submits that in-fact during the pendency of the appeal, the

operation of the order passed by the trial court was not stayed till

24-06-2022 and it was only thereafter that the lower appellate court

had directed the parties to maintain status quo till yesterday.

19. Considering the nature of the dispute, the order of status

quo continues for a period of three weeks to enable the respondents to

approach the Supreme Court.

20. Rule is made absolute in above terms.

[ MANGESH S. PATIL ] JUDGE arp/