Bombay High Court
Gopal S/O Narayan Kuthe And Others vs Dadaji S/O Govinda Mundle And ... on 27 July, 2022
Bench: Avinash G. Gharote
(1) wp96.20
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 96/2020
Gopal s/o Narayan Kuthe and Ors. .vs. Dadaji s/o Govinda Mundle and anr.
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. A. S. Bhendarkar, Advocate for petitioners.
Mr. M. N. Ali, Advocate for respondent nos. 1 and 2.
CORAM : AVINASH G. GHAROTE, J.
DATE : 27.07.2022
Heard Mr. Bhendarkar, learned counsel for
the petitioner and Mr. Ali for the respondent nos.1 and 2.
2. The Petition challenges the concurrent
findings by the court below holding that the respondents
are in cultivating possession and therefore the
application for injunction filed by the
respondents/original plaintiffs has been allowed by the
trial court by the order dated 20.12.2020 and has also
been confirmed by the appellate Court by its judgment
dated dated 27.04.2019.
3. Mr. Bhendarkar, learned counsel for
petitioner submits that the claim of the plaintiffs being in
possession is on a basis of an oral agreement as spelt out
of the year 1992 based upon which the plaintiff is placed
in possession and therefore the basic premise of filing of
the suit, was clearly unsustainable in law.
(2) wp96.20
4. Whether the suit will succeed or not on the
basis of a plea of an oral agreement is a matter for the
trial court to decide based upon the evidence which may
come on record. Insofar as the application for injunction
is concerned, both the courts below have rendered a
concurrent finding of the plaintiffs being in cultivating
possession of the suit property. The basis of a such a
finding is not only the order of the Sub Divisional Officer,
Desaiganj, as a Magistrate under Section 145 of the Code
of Criminal Procedure dated 19.10.2018, which has been
subsequently stayed in revision (page 63) by the order
dated 05.11.2018, but also the spot panchanama dated
23.10.2018 as well as the entry in the 7B extract, which
indicates that since the last seven years prior to the suit,
the respondent is in cultivating possession of the land in
question.
5. That being the position, in my considered
opinion, no fault can be found with the findings of the
learned courts below. There is no merit in the petition.
The same is accordingly dismissed. No order as to costs.
JUDGE
kahale
Digitally signed byYOGESH
ARVIND KAHALE
Signing Date:28.07.2022
10:39
