Sarlabai Wd/O. Onkar Ghongade And ... vs Dinesh Premsingh Gahalod And ...
2023 Latest Caselaw 1136 Bom

                                                         1                            912.WP.2015-2021.odt




               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH AT NAGPUR

                            WRIT PETITION NO. 2015 OF 2021
                     ( Smt. Sarlabai Wd/o Onkar Ghongade & Ors.
                                         Vs.
                          Dinesh Premsingh Gahalod & Ors. )

Office Notes, Office Memoranda                          Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders


                                  Mr. A.A. Mardikar, Advocate for the Petitioners.
                                  Mr. P.R. Agrawal, Advocate for the Respondent Nos. 1 & 2.



                                  CORAM:        AVINASH G. GHAROTE, J.

DATED : 3rd FEBRUARY, 2023

Heard Mr. Mardikar, learned counsel for the petitioners and Mr. Agrawal, learned counsel for the respondent Nos. 1 and 2.

2. The petition challenges the judgment dated 20.04.2021 passed in Misc. Civil Appeal No. 37/2020 (page 102), whereby the order below Exh. 5 passed by the learned Trial Court in R.C.S. No. 15/2020 dated 05.10.2020 restraining the respondent Nos. 1 and 2 from disturbing the possession of the plaintiffs/petitioners over the suit properties, has been set aside.

3. Mr. Mardikar, learned counsel for the petitioners submits, that the petitioners were the owners of Gat No. 45 and Gat No. 46, out of which Gat No. 45 was sold to the respondent No. 3 and Gat No. 46 was sold to the respondent Nos. 1 and 2 by two sale deeds 2 912.WP.2015-2021.odt

both dated 30.06.2016, which according to him was a money lending transaction. It is contended, that inspite of the said sale deeds, the petitioners/plaintiffs continued to remain in possession of the property in question.

4. As there was apprehension regarding disturbance of possession, a suit came to be filed on 30.06.2020 namely R.C.S. No. 15/2020 for confirmation of possession and permanent perpetual injunction, in which by the order below Exh. 5, the learned Trial Court found the petitioners to be in possession and restrained the respondents from disturbing the same which according to him has been incorrectly upset by the learned Appellate Court.

5. Mr. Mardikar, learned counsel for the petitioners submits, that the intermediary who had acted in the loan transaction dated 30.06.2016, had himself admitted, that he had received an amount of Rs.2,10,000/- from the petitioners, which he admits to have paid to the respondent No. 1, for which he places reliance upon the document at page 36 (Annexure-B). It is pertinent to note, that this document has been denied by the respondent Nos.1 and 2 including the signature claimed to be of the respondent No. 1 on that document. Mr. Mardikar, learned counsel for the petitioners, further relies upon the communication dated 31.01.2018 (page 37), claimed to have been written by the respondent No. 3, which indicates that there was some transaction between the respondent No. 3 and the petitioner No.1 on 05.07.2015, in pursuance to which, 3 912.WP.2015-2021.odt

sale deed of half acre of land was executed and since the transaction has been cleared, the sale deed should be cancelled. Further reliance is placed by him upon the complaint made under Section 16 of the Maharashtra Money-Lending (Regulation) Act, 2014 (for short the "Act of 2014") to the competent authority thereunder on 16.06.2020 (page 38). He also places his reliance upon the certificate in Form 7-B under Rule 31 of the Maharashtra Land Revenue Record of Rights and Registers (Preparation and Maintenance) Rules, 1971 (for short the "Rules of 1971"), issued by Talathi to contend, that the petitioner No.1, was in possession of the lands in question. He therefore submits, that the impugned judgment of the learned Appellate Court, is required to be quashed and set aside.

6. Mr. Agrawal, learned counsel for the respondent Nos. 1 and 2 supports the impugned judgment and submits, that the sale deed itself indicates delivery of possession, which is fortified by the subsequent mutation in the names of the respondent Nos. 1 and 2 in the 7/12 extract and the Record of Rights after following the due procedure. He submits, that since the document dated 12.04.2017 (page 36), has been specifically denied by the respondent No.1 as a false and fabricated document, the veracity of the same cannot be relied even prima facie and its legality would be a matter of evidence. He also contends, that the certificate in Form 7-B under Rule 31 of the Rules of 1971, does not depict the correct position as it is merely for one 4 912.WP.2015-2021.odt

agricultural year of 2019-2020.

7. The sale deed dated 30.06.2016, in favour of the respondent Nos. 1 and 2 in respect of Gat No. 46 (page 146) is a registered document, and therefore, carries the presumption available in law. The sale deed is for the consideration of Rs.7,60,000/-, which is stated to have been received by the petitioner No.1. Clause 4 of the sale deed (page 147) specifically indicates delivery of possession of the property in question. What is also material to note is that in pursuance to the sale deed, the names of the respondent Nos.1 and 2, have been duly mutated in the Record of Rights (page 171), after service of notice upon the petitioner No. 1 on 21.01.2017 and no objection having been raised by the petitioner No. 1 in that regard. What is also material to note is that from 2016 till 2020, the petitioner No.1 did not raise any objection whatsoever, to the aforesaid entry or for that matter in respect of the sale deed dated 30.06.2016 with any authorities.

8. Insofar as the plea, that the petitioner No. 1 inspite of the sale deed dated 30.06.2016 continued to be in possession, it would be material to note, that the certificate in Form 7-B under Rule 31 of the Rules of 1971 (page 113) with Civil Application (CAW) No. 88/2023, is surprisingly restricted only to the year 2019-2020 and does not speak anything about the earlier years, which itself, creates a doubt about its genuineness and veracity. That apart, the provisions of Rule 31 of the Rules of 1971, indicate the requirement of issuance of 5 912.WP.2015-2021.odt

notice to the concerned person whose name is entered in the Record of Rights and making an enquiry before issuing any certificate. Since, the names of the respondent Nos. 1 and 2 were duly mutated in the Record of Rights, a notice to them under Rule 31(1) of the Rules of 1971, was therefore mandatory before issuing any certificate in Form 7-B under Rule 31 of the Rules of 1971. The certificate in Form 7-B under Rule 31 of the Rules of 1971, does not indicate, that any such procedure has been followed, neither any material has been placed on record by the petitioners to indicate compliance of any such procedure, in view of which, the certificate in Form 7-B under Rule 31 of the Rules of 1971, cannot be relied upon to hold that the petitioner No.1 continued to be in possession inspite of the sale deed dated 30.06.2016 and the subsequent mutation in the names of the respondent Nos.1 and 2.

9. Though reliance is placed upon the payment of land revenue by the petitioner No. 1 (page 104, 105), that by itself is a surprise for the reasons that the mutation in the Record of Rights already stood effected on 19.07.2017, and therefore, since the names of the respondent Nos. 1 and 2 were figuring in the Record of Rights, the land revenue could not have been accepted from the petitioner No.1, which again creates prima facie doubt regarding the veracity of these two documents.

10. Though reliance is also placed upon the document dated 12.04.2017 (page 36) to contend, that payment was made by the mediator to the respondent 6 912.WP.2015-2021.odt

No.1, however on account of its denial, that is a matter whose veracity can only be ascertained consequent to the leading of evidence at the trial.

11. Merely because on a complaint under Section 16 of the Act of 2014, a First Information Report has been registered against the respondent Nos. 1 and 2, that by itself, cannot be held to mean that the petitioner No. 1 is in possession of the property in question, inspite of the sale deed dated 30.06.2016.

12. Reliance is also placed upon the document dated 31.01.2018 (page 37), claimed to have been executed by the respondent No.3, which has to be considered in light of the position that though the document is dated 31.01.2018, what is contemplated therein, has not come to pass till the filing of the suit, which again would indicate, that the contents of the document will have to be tested on the touchstone of the evidence during the course of the trial. The above position does not appear to have been considered by the learned Trial Court while passing the order below Ex.5.

13. In view of the above discussion, I do not see any reason to interfere in the impugned judgment of the learned Appellate Court.

14. The Petitioner is therefore dismissed. No costs.

15. At this juncture Mr. Mardikar, learned counsel for the petitioners, makes a request for 7 912.WP.2015-2021.odt

continuation of the status quo granted on 26.04.2022 for a period of two weeks. What is material to note is that the order of status quo dated 26.04.2022 does not indicate as to who is in possession of the property in question, as a result of which, the continuation of the order of status quo could be detrimental to both the parties. Since a finding has already been rendered that it is the respondents who are in possession, by the Appellate Court, which has been upheld by me I do not feel it appropriate to continue the order of status quo as that may lead to complications rather than preserving the particular state of affairs. The request is therefore declined.

JUDGE SD. Bhimte

Signed By:SHRIKANT DAMODHAR BHIMTE

Signing Date:06.02.2023 10:26