Bombay High Court
Vithu Ishwara Bhike Through Power ... vs Saubai Pandurang Bhike And Ors on 8 March, 2022
Bench: Nitin W. Sambre
(5)-WP-902-18.doc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally
CIVIL APPELLATE JURISDICTION
signed by
BALAJI
BALAJI GOVINDRAO
GOVINDRAO PANCHAL
PANCHAL Date:
2022.03.09
10:21:19
WRIT PETITION NO.902 OF 2018
+0530
Vithu Ishwara Bhike ..Petitioner
Versus
Saubai Pandurang Bhike and Ors. ..Respondents
Mr. Sandeep S. Koregave, for the Petitioner.
Mr. S. H. Kankal, AGP, for the Respondent Nos.1 & 4.
CORAM : NITIN W. SAMBRE, J.
DATE : 8th MARCH, 2022
P.C.
1. Heard.
2. Petitioner/plaintiff initiated suit based on cause of action
dated 31st July, 2016 for permanent injunction based on settled
possession. Trial Court granted temporary injunction in favour of
the petitioner, however, the said order is reversed by the Appellate
Court vide impugned order dated 22nd August, 2017. As such, this
petition.
3. I have heard learned counsel for the petitioner Mr.
Sandeep Koregave at length.
4. Drawing support from the documents i.e. partition-deed
which is claimed to have been executed inter se between
predecessor of the petitioner and defendants on 22 nd July, 1943,
revenue entries i.e. 7/12 extract and finding recorded in an earlier
BGP. 1 of 3
(5)-WP-902-18.doc.
suit preferred by the defendants for injunction being RCS No.153 of
2002. According to him, since the suit preferred by the respondents
being RCS No.153 of 2002 came to be dismissed vide judgment of
Appellate Court on 5th January, 2016, Second Appeal at the behest
of the respondents is pending. He would as such claim that the
Court below committed an error in refusing prayer for grant of
temporary injunction.
5. I have appreciated the said submissions in the light of
finding recorded by the Lower Appellate Court in the impugned
order whereby the prayer for temporary injunction is rejected.
6. It is required to be noted that pursuant to position of law
that there is presumption of existence of joint family, the Court
below proceeded to analyze the claim of the petitioner/plaintiff so
as to find out whether the petitioner can be said to be in settled
possession of the suit property.
7. The petitioner has relied on certain documents i.e.
partition-deed as referred above, so also revenue entry of the entire
7/12 extract. It appears that all these documents are considered in
the impugned order rightly so by the Appellate Court to record
finding that the petitioner's settled possession over the suit property
cannot be inferred.
8. Rather the Trial Court was justified to have been
ordering by recording finding that the respondents/defendants have
failed to demonstrate their settled possession over the suit property.
BGP. 2 of 3
(5)-WP-902-18.doc.
That being so, inference drawn in favour of the petitioner/plaintiff
that he is in settled possession over the suit property while ordering
temporary injunction in favour of the petitioner.
9. The fact remains that the Lower Appellate Court while
reversing the finding in an appeal of the respondents has not
recorded a positive finding that the petitioner is in settled
possession of the suit property.
10. Since the petitioner has failed to demonstrate that he is
in settled possession of the suit property, the Court below was
justified in refusing/reversing order of grant of temporary
injunction. That being so, no case for interference in the
extraordinary jurisdiction of this Court is made out.
12. As such petition fails, dismissed.
13. The fact remains that the impugned order thereby
refusing temporary injunction is holding field for last more than
four years which fact also prevail before this Court for grant of
rejection of temporary injunction.
14. Since the suit is more than five years old, it shall be
open for the petitioner to move before the Trial Court for expediting
the same.
[NITIN W. SAMBRE, J.]
BGP. 3 of 3
