Raghunath Dagdu Mali vs Shivaji Bhagwan Patil And Ors
2023 Latest Caselaw 11687 Bom

P.H. Jayani                                             25 SA430.2023.doc

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CIVIL APPELLATE JURISDICTION

                     INTERIM APPLICATION NO. 13474 OF 2023
                                      IN
                         SECOND APPEAL NO. 430 OF 2023
                                     WITH
                         SECOND APPEAL NO. 430 OF 2023

Raghunath Dagadu Mali                                  .... Appellant
           v/s.
Shivaji Bhagwan Patil and ors.                         .... Respondents


Mr. S.G. Deshmukh i/b. Mr. Abhijeet Kandarkar for the Appellant.
Mr. Vishal Kanade i/b. Ms. Tanvii Tapkire for the Respondents.


                                    CORAM: SMT. ANUJA PRABHUDESSAI, J.

DATED : 10th NOVEMBER, 2023.

P. C. :-

. Heard Mr. S.G. Deshmukh, learned counsel for the Appellant and

Mr. Vishal Kanade, learned counsel for the Respondents.

2. The Appellant who is the original Plaintiff has filed a suit for

declaration that the sale deed dated 03/03/1999 executed in favour of

the Respondents was null and void. The Trial Court recorded a

categorical finding that the Appellant-plaintiff has failed to prove that

he is in possession of the suit plot i.e., Gat Nos.300, 307 and 308 of

village Maptemala, Tal. Atpadi, District - Sangli. The trial court has

P.H. Jayani 25 SA430.2023.doc

recorded a finding that the Plaintiff has failed to prove his possession in

respect of the suit property. The Trial Court further held that the

Plaintiff has failed to prove that the sale deed is null and void and

dismissed the suit.

3. Being aggrieved by this order, the Appellant - plaintiff filed

Appeal under section 96 of the Civil Procedure Code. The Appellate

Court has confirmed the findings of the trial court that the Appellant -

plaintiff has failed to prove that the sale deed is null and void. The

Appellate Court has further held that the factory premises admeasuring

20R in Gat No.300 is in possession of the Appellant - plaintiff and

further that the Appellant has failed to prove possession in respect of

the remaining portion of the suit property and hence, dismissed the

Appeal.

4. Being aggrieved by the dismissal of the First Appeal, the

Appellant has filed this Appeal under section 100 of CPC and by this

Application under consideration, the Appellant - plaintiff has sought

interim relief to restrain the Respondents from interfering with the

possession of the suit property.

P.H. Jayani 25 SA430.2023.doc

5. Learned counsel for the Appellant submits that the interim relief

was operating in his favour till the dismissal of the Appeal. He seeks

continuation of the interim relief pending hearing of the Appeal. Mr.

Kanade, learned counsel for the Respondent has drawn my attention to

the order dated 08/02/2008 wherein this Court had observed that the

Appellant - plaintiff was not in possession of the suit property. He,

therefore, submits that the Appellant is not entitled for the interim

relief as prayed.

6. I have perused the records and considered the submissions

advanced by the learned counsel for the respective parties.

7. The short point for consideration is whether the Appellant -

plaintiff is in possession of the suit property and whether his possession

needs to be protected. It is not in dispute that the Appellant - plaintiff

has executed the sale deed in favour of the Respondents. The recitals

in the sale deed indicate that the Respondents were put in possession of

the suit property. Both the Courts below have recorded concurrent

findings that the Appellant - plaintiff has failed to establish that the

sale deed is null and void. The findings of the Appellate Court also

prima facie confirms that the Appellant - plaintiff is not in possession

P.H. Jayani 25 SA430.2023.doc

of the suit property except factory premises situated at Gat No.300.

8. It is also pertinent to note that this Court by order dated

15/12/2004 in Civil Application No.5054/2004 in First Appeal

No.1237/2004 had granted ad-interim relief while the first appeal was

pending before this Court and had thereby restrained the Respondents

from interfering with the possession and enjoyment of the Appellant in

respect of the suit property bearing Gat Nos.300, 307 and 308 situated

at Maptemala, Tal. Atpadi, Dist. Sangli. By order dated 28/10/2005,

this Court had granted police protection to enforce the order dated

15/12/2004. Subsequently, the application was heard on merits and

was disposed of by order dated 08/02/2008. While directing the

parties to maintain status-quo, this Court had observed in paragraph 5

as under :-

" 5. Considering the aforesaid orders passed during the pendency of the suit and considering the findings recorded by the trial court in the impugned judgment it is difficult to accept the contention of the Applicant that he is in possession of the suit property. The material on record prima facie supports the contention of the Respondents that they are in possession. "

9. In view of the specific findings recorded by the Courts below as

P.H. Jayani 25 SA430.2023.doc

well as the findings recorded by this Court in Civil Application

No.4054/2004 during the pendency of the First Appeal No.1237/2004,

it is prima facie difficult to accept the contention that the Appellant -

plaintiff is in possession of the entire property. Hence, no case is made

out for ad-interim relief in respect of Gat Nos.300, 307 and 308 except

factory premises. The Respondents shall not interfere with the

Appellant's possession in respect of the factory premises till the next

date.

10. Reply, if any, to be filed on or before the next date of hearing with

copy to the other side.

11. Appeal be listed on admission board on 29/11/2023.

(SMT. ANUJA PRABHUDESSAI, J.)