[Cites 3, Cited by 0]
Bombay High Court
Subhash Vithal Kurhe (Lonari) And Anr vs Anita Sitaram Andhale And Ors on 17 December, 2025
Author: N.J.Jamadar
Bench: N.J.Jamadar
2025:BHC-AS:55758
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.15421 OF 2025
1. Subhash Vithal Kurhe (Lonari),
Age 60 years, Occu : Agriculturist,
2. Sunila Vithal Kurhe (Lonari),
Age 55 years, Occu : Agriculturist,
R/at Lauki Shirasgaon, Tal - Yeola,
District Nashik. ... Petitioners
versus
1. Anita Sitaram Andhale,
Age 54 years, Occu : Agriculturist,
2. Jayashri Dnyaneshwar Andhale,
Age 44 years, Occu : Agriculturist,
3. Jyoti Tanaji Andhale,
Age 38 Years, Occu : Agriculturist,
4. Kalindi Govind Nagare,
Age 34 years, Occu : Agriculturist,
All above R/at : Pachore Brk., Taluka Niphad,
District Nashik.
Through Power of Attorney Holder Shri Tajani
Devram Andhale,
Age 45 years, Occu - Agri. And Business,
R/at : Pachore Brk., Taluka - Niphad,
Dist. Nashik. ... Respondents
Mr. Girish Agrawal with Ms. Chitra Darekar, for Petitioners.
Mr. Balasaheb Deshmukh, for Respondents.
CORAM: N.J.JAMADAR, J.
RESERVED ON : 2 DECEMBER 2025
PRONOUNCED ON : 17 DECEMBER 2025
SSP 1/19
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JUDGMENT :
1. Rule. Rule made returnable forthwith, and, with the consent of the
learned Counsel for the parties, heard finally.
2. This Petition under Article 227 of the Constitution of India, assails the
legality, propriety and correctness of the judgment and order dated 29
October 2025 passed by the learned District Judge, Nashik, in Misc. Civil
Appeal No.19 of 2025, whereby the appeal preferred by the Respondents -
Defendants against an order dated 7 August 2025 passed by the Trial Court in
RCS No.151 of 2025, came to be allowed by setting aside the said order,
whereunder the Respondents - Defendants were restrained from causing
obstruction to, or interference with, the peaceful possession of the Petitioners
- Plaintiffs over the suit property, till the decision of the suit.
3. Though, the litigation has a chequored history, the background facts
necessary for the determination of this Petition, can be summerized, as under
:
3.1 Rayaji was the holder of the land bearing Gat No.66 admeasuring 9H
60R situated at Lauki, Shirasgaon, Tal. Yeola, Dist. Nashik (the suit property).
Rayaji had four sons and two daughters, including Namdeo and Devram.
Machindra, the vendor of the Respondents, represents Namdeo Branch.
Plaintiff Nos.1 and 2 are the sons of Vithal, one of the five sons of Devram.
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Machindra, the vendor of the Respondents, had instituted RCS No.61 of 2011
against the Petitioners seeking a decree of perpetual injunction to restrain the
Petitioners from causing obstruction to the possession and enjoyment of the
suit land by Machindra.
3.2 In the said suit, Machindra had preferred an application for temporary
injunction. By an order dated 29 October 2012, learned Civil Judge was
persuaded to partly allow the said application and restrain the Petitioners -
Defendants therein, from causing obstruction to the possession of Machindra
over the suit property, excluding the houses of the Defendants bearing
No.190, 112, 210 and also from from obstructing Machindra while cultivating
the suit property, till the decision of the suit.
3.3 The Petitioners preferred Misc. Civil Appeal No.62 of 2012. By a
judgment and order dated 15 July 2016, learned District Judge, Niphad, was
persuaded to allow the appeal and set aside the order dated 29 October 2012
in RCS No.61 of 2011. Learned District Judge was of the view that the
material on record, prima facie, indicated that since 1954-55, the Petitioners
and their ancestors were in possession of the suit property.
3.4 Eventually, the Petitioners - Defendants in RCS No.61 of 2011, filed
Written Statement and Counter Claim. The Petitioners also preferred an
application to restrain Machindra from alienating the suit property or changing
its nature. By an order dated 1 December 2022, learned Civil Judge rejected
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the said application.
3.5 While RCS No.61 of 2011 awaited adjudication, Machindra executed a
Registered Conveyance of the suit property in favour of the Respondents on
17 April 2025. The Petitioners - Plaintiffs, thus, instituted RCS No.151 of 2025
asserting, inter alia, that, on the strength of the said illegal Conveyance, the
Defendants - purchasers threatened to dispossess the Plaintiffs.
3.6 In the said suit, the Plaintiffs sought a declaration that the Plaintiffs were
the owners, and in possession, of the suit property, and, that the Sale Deed
dated 17 April 2025 executed by Machindra in favour of the Respondents -
Defendants, was illegal and void and did not bind the Plaintiffs. In the said
RCS No.151 of 2025, the Plaintiffs filed an application for temporary injunction
to restrain the Defendants from causing obstruction to the possession and
enjoyment of the suit property by the Plaintiffs.
3.7 By an order dated 7 August 2025, the learned Civil Judge was
persuaded to allow the application and restrain the Defendants from causing
obstruction to, and interference with, the peaceful possession of the Plaintiffs
over the suit property.
3.8 In an appeal preferred thereagainst, learned District Judge interfered
with the exercise of discretion by the Trial Court and allowed the appeal. It
was, inter alia, observed that the subsequent suit was required to be stayed in
view of the pendency of RCS No.61 of 2011, as the matter in issue in the
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instant suit was directly and substantially in issue in RCS No.61 of 2011.
Secondly, the claim of the Plaintiffs of ownership over the suit property was
yet to be adjudicated. Thirdly, though the mutation entries in the record of
rights raised a presumption as to possession, yet, Machindra appeared to be
the owner of the suit property. Thus, the learned District Judge was
persuaded to set aside the order of temporary injunction in RCS No.151 of
2025.
3.9 Being aggrieved, the Plaintiffs have invoked the writ jurisdiction.
4. I have heard Mr. Agrawal, learned Counsel for the Petitioners, and, Mr.
Balasaheb Deshmukh, learned Counsel for the Respondents, at some length.
Learned Counsel took the Court through the pleadings before the Courts
below and the various orders passed by the Courts in the proceedings
between the Plaintiffs, on the one part, and, the vendors of the Respondents,
on the other part, as well as the proceedings, inter se, children of Devram.
5. Mr. Agrawal, learned Counsel for the Petitioners, submitted that, the
learned District Judge committed a manifest error in interfering with the
discretionary order passed by the Trial Court. There was overwhelming
material to show that the Plaintiffs were in possession and cultivation of the
suit property. There was a judicial imprimatur to the Plaintiffs' claim of
possession in the form of the judgment and order passed in Misc. Civil Appeal
No.62 of 2012, whereby upholding the claim of the Plaintiffs of possession
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over the suit property, injunction granted by the Trial Court in RCS No.16 of
2011 instituted by Machindra was set aside. The judgment and order in Misc.
Civil Appeal No.64 of 2012 was never assailed, and, thus, attained finality.
6. In the face of the said orders, and, documents of unimpeachable
character to show that the Plaintiffs were in possession of the suit property,
the learned District Judge could not have interfered with the order passed by
the Trial Court. Mr. Agrawal would urge, the learned District Judge lost sight
of the jurisdictional limits in an appeal against the discretionary order.
7. Mr. Agrawal further submitted that the learned District Judge was not at
all justified in holding that the suit instituted by the Plaintiffs was required to be
stayed under the provisions of Section 10 of the Code of Civil Procedure,
1908. The cause of action was completely different. Taking the Court through
the copy of the Sale Deed, Mr. Agrawal would urge that, though in the Sale
Deed, a reference was made to the pendency of RCS No.61 of 2011, and the
order dated 29 October 2012 passed by the Trial Court, yet, with an oblique
motive, no reference was made to the order passed by the learned District
Judge in Misc. Civil Appeal No.62 of 2012 dated 15 July 2016, whereby the
said order of temporary injunction was set aside. Since the Respondents -
Defendants threatened to dispossess the Plaintiffs on the basis of such Sale
Deed, which was executed with a design to defeat the rights of the Plaintiffs,
the Plaintiffs were constrained to institute RCS No.151 of 2025. In this
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backdrop, the provisions contained in Section 10 of CPC were not at all
attracted, urged Mr. Agrawal.
8. In any event, even if it is assumed that the suit was required to be
stayed under the provisions of Section 10 of the Code, yet, there is no
impediment for the Court to grant interim relief, even in such a suit. To this
end, Mr. Agrawal placed a very strong reliance on the judgment of a learned
Single Judge of this Court in the case of Breach Candy Swimming Bath
Trust and Ors. V/s. Dipesh Mehta and Ors.1.
9. Mr. Agrawal would further urge that, the learned District Judge also
committed an error in holding that the mutation entries which indicate that the
Plaintiffs are in possession and cultivation of the suit property are of no avail
to the Plaintiffs. The mutation entries, prima facie, raised presumption in
regard to the possession, and, at the stage of grant of temporary injunction,
the Court was required to examine the factum of possession and not its
legality.
10. To bolster up this submission, Mr. Agrawal placed reliance on a
judgment of the Supreme Court in the case of The State of A.P. and Ors.
V/s. M/s. Star Bone Mill & Fertiliser Co. 2, and, a judgment of a learned
Single Judge of this Court in the case of Mahadeo Kashiba Waghmode &
Ors. V/s. Kallappa Shidilinga Waghmode & Anr.3
1 2016(7) ALL MR 330
2 2013 ALL SCR 1073
3 2016(1) ALL MR 404
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11. Lastly, Mr. Agrawal would urge, the Respondents - Defendants cannot
have a better title and rights than Machindra. Since the Appellate Court in
Misc. Civil Appeal No.64 of 2012 had negatived the claim of Machindra as to
the possession over the suit property, the Respondents are bound by the said
order.
12. In opposition to this, Mr. Deshmukh, learned Counsel for the
Respondents would submit that, the case of the Plaintiffs suffered from the
vice of gross suppression of facts and malafide. The Plaintiffs did not
approach the Court with clean hands and suppressed the facts which could
not have been suppressed. In fact, the Plaintiffs had instituted a suit being
RCS No.127 of 2007 against Machindra for a declaration that the Plaintiffs
and Vithal, who was impleaded as Defendants No.2 in the said suit, were the
owners of the suit property and Machindra had no right, title and interest
therein. The said suit was dismissed.
13. Conversely, Vithal, father of the Plaintiffs, had instituted a suit against
his brother Shankar for partition and separate possession of the properties
allotted to Devram and, in the said suit, a categorical statement was made
that Kashinath, father of Machindra, was the owner of the suit property and
the suit property was never allotted to Vithal in partition.
14. Taking the Court through the pleadings and the judgment and decree
passed in SCS No.182 of 1996, Mr. Deshmukh would urge that the Plaintiffs
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cannot be permitted to draw any mileage from the judgment and order in
Misc. Civil Appeal No.62 of 2012. It was submitted that the interim orders
passed in the proceedings do not operate as res-judicata. To bolster up this
submission, Mr. Deshmukh placed reliance on a judgment of the Supreme
Court in the case of Arjun Singh V/s. Mohindra Kumar4.
15. Mr. Deshmukh would further urge that the second suit for declaration of
ownership over the suit property, after dismissal of RCS No.127 of 2007 was
clearly barred. Thus, the instant suit for perpetual injunction was also barred.
To lend support to this submission, Mr. Deshmukh placed reliance on the
judgment of the Supreme Court in the case of Padhiyar Prahladji Chenaji
(deceased) through LRs v/s. Maniben Jagmalbhai (deceased) through
LRs and Ors.5
16. Lastly, Mr. Deshmukh would urge, the Respondents on the basis of the
registered instrument have became true owner of the suit property. No
injunction can be granted against the true owners, in the absence of any
semblance of title over the suit property. A very strong reliance was placed by
Mr. Deshmukh on the judgment of the Supreme Court in the case of Maria
Margarida Sequeria Fernandes and Ors. V/s. Erasmo Jack De Sequeria
(dead) through LRs and Ors.6.
17. The aforesaid submissions now fall for consideration. At the outset, it
4 AIR 1964 SC 993
5 2022 0 Supreme (SC) 197
6 2012 0 Supreme (SC) 246
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is necessary to note the limits of the jurisdiction of the Appellate Court in an
appeal against the discretionary order. It is trite, an appeal against the
discretionary order is an appeal on principle. It is not open for the Appellate
Court to reevaluate the material and take a different view of the matter and
substitute its view for the one recorded by the Trial Court. The Appellate
Court can legitimately intervene if the Trial Court's order suffers from
arbitrariness or perversity or discretion has been exercised in violation of the
settled principles of law. An arbitrariness in the exercise of discretion or
perversity in the order passed by the trial Court can arise where the injunction
has been granted sans material or the trial court has declined to grant
temporary injunction, despite existence of justifiable material.
18. A profitable reference in this context can be made to a three Judge
Bench decision of the Supreme Court in the case of Wander Ltd. and Anr. V/s.
Antox India P. Ltd.7 wherein the following observations have been made :
"14. The appeals before the Division Bench were against
the exercise of discretion by the Single Judge. In such
appeals, the Appellate Court will not interfere with the
exercise of discretion of the court of first instance and
substitute its own discretion except where the discretion has
been shown to have been exercised arbitrarily, or
capriciously or perversely or where the court had ignored the
settled principles of law regulating grant or refusal of
interlocutory injunctions. An appeal against exercise of
7 1990 (supp) SCC 727
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discretion is said to be an appeal on principle. Appellate
Court will not reassess the material and seek to reach a
conclusion different from the one reached by the court below
if the one reached by the court was reasonably possible on
the material. The appellate court would normally not be
justified in interfering with the exercise of discretion under
appeal solely on the ground that if it had considered the
matter at the trial stage it would have come to a contrary
conclusion. If the discretion has been exercised by the Trial
Court reasonably and in a judicial manner the fact that the
appellate court would have taken a different view may not
justify interference with the trial court's exercise of discretion.
After referring to these principles Gajendragadkar, J. in
Printers (Mysore) Pvt. Ltd. V/s. Pothan Joseph8 :
"... These principles are well established, but as has
been observed by Viscount Simon in Charles Osention & Co.
v. Johnston the law as to the reversal by a court of appeal of
an order made by a judge below in the exercise of his
discretion is well established, and any difficulty that arises is
due only to the application of well settled principles in an
individual case.
The appellate judgment does not seem to defer to this
principle." (emphasis supplied)
19. In the case of Seema Arshad Zaheer and Ors. V/s. Municipal
Corporation of Greater Mumbai and Ors. 9 the Supreme Court expounded
the principles which govern the interference by the appeal Court in the
8 (1960) 3 SCR 713
9 (2006) 5 SCC 282
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discretionary order passed by the trial Court. The observations in paragraph
32 are material, and, hence, extracted below :
"32. Where the lower court acts arbitrarily, capriciously or
perversely in the exercise of its discretion, the appellate court
will interfere. Exercise of discretion by granting a temporary
injunction when there is 'no material', or refusing to grant a
temporary injunction by ignoring the relevant documents
produced, are instances of action which are termed as
arbitrary, capricious or perverse. When we refer to acting on
'no material' (similar to 'no evidence'), we refer not only to
cases where there are total dearth of material, but also to
cases where there is no relevant material or where the
material, taken as a whole, is not reasonably capable of
supporting the exercise of discretion. In this case, there was
'no material' to make out a prima facie case and therefore,
the High Court in its appellate jurisdiction, was justified in
interfering in the matter and vacating the temporary injunction
granted by the trial court." (emphasis supplied)
20. Another three Judge Bench of the Supreme Court in the case of
Skyline Education Institute (India) Pvt. Ltd. V/s. S.L.Vaswani and Anr. 10
after referring to the previous precedents, culled out the principles which
govern the exercise of appellate jurisdiction against discretionary orders, as
under :
"22. The ratio of the abovenoted judgments in that once
the Court of first instance exercises its discretion to grant or
10 (2010) 2 SCC 142
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refuse to grant relief of temporary injunction and the said
exercise of discretion is based upon objective consideration
of the material placed before the Court and is supported by
cogent reasons, the appellate court will be loath to interfere
simply because on a de novo consideration of the matter it is
possible for the appellate Court to form a different opinion on
the issues of prima facie case, balance of convenience,
irreparable injury and equity." (emphasis supplied )"
21. In the light of the aforesaid position in law, it has to be seen whether the
learned District Judge was justified in interfering with the discretionary order
passed by the Trial Court. The fact that in RCS No.61 of 2011, the Plaintiffs
(Defendants therein) had filed a Counter Claim and sought declaration of title
over the suit property and the relief of injunction to restrain Machindra from
causing obstruction to their possession and enjoyment of the suit property,
weighed with the learned District Judge in holding that "this is a classic case
of overlapping civil suits over the same property, where the issue of title and
possession is subjudice in earlier suit".
22. The Trial Court, in contrast, was of the view that, as the both the suits
were based on distinct causes of action, the provisions contained in Section
10 of the Code would not be attracted. At any rate, the Plaintiffs had an option
of either impleading the Defendants in the former suit or institute a separate
suit; and, there was no illegality in the exercise of second option by the
Plaintiffs.
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23. In the circumstances of this case, and, especially, having regard to the
stage of the proceedings, the issue of application of the provisions contained
in Section 10 of the Code, did not appear to be of decisive significance. Mr.
Agrawal was justified in canvassing a submission that, even where the
subsequent suit is stayed, in a given case, to balance equities, the Court is
not denuded of the power to grant interim relief.
24. In the case of Breach Candy (supra), on which reliance was placed by
Mr. Agrawal, a learned Single Judge of this Court enunciated that the
jurisdiction of the Civil Court being plenary in nature, if it is seized of a suit,
the provisions of Order XXXIX Rule (1) and (2) and Section 151 are clearly
attracted, and whether or not the Court is in a position to conduct the trial, it
can always grant interim relief by exercising these powers. On this principle,
even where the trial of a suit is stayed under Section 10 of the Code, the
Courts exercise these powers and grant interim relief.
25. On the aspect of the factum of possession, the judgment of the learned
District Judge in Misc. Civil Appeal No.62 of 2012, whereby the injunction
granted in favour of Machindra, was set aside, seems to govern the rights of
the Plaintiffs and Machindra, the vendor of the Defendants, during the
pendency of the suit instituted by Machindra. In the said judgment, the
learned District Judge has categorically recorded that, prima facie, it
appeared that Machindra failed to prove that he was in possession of the suit
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property. On the contrary, the documents on record, prima facie, show that
since 1954-55, the Defendants and their ancestors were in possession of the
suit property. All the parameters of grant of interim injunction were found in
favour of the Plaintiffs. Incontrovertibly, the said order attained finality.
26. In the impugned order, learned District Judge was not prepared to give
importance to the entries in the revenue record. Learned District Judge went
on to observe that the registered instrument stands on a higher pedestal and
the acquisition of title by the Respondents would be subservient to the
eventual decree that may be passed in RCS No.61 of 2011. Therefore, no
injunction can be granted against the Respondents.
27. Learned District Judge, in the considered view of this Court,
approached the controversy from an incorrect perspective. Learned District
Judge lost sight of the fact that in the order impugned in appeal, the
Defendants were restrained from causing obstruction to or interference with
the peaceful possession of the Plaintiffs over the suit property. Implication of
the order passed by the Trial Court was only to protect the possession of the
Plaintiffs. Prima facie, in the face of the earlier order passed in Misc. Civil
Appeal No.64 of 2012 and entries in the revenue record, which show the
possession of the Plaintiffs over the suit property, learned District Judge could
not have interfered with the discretionary order passed by the Trial Court on
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the premise that the possession of the Plaintiffs over the suit property was not
legal.
28. This propels me to the submissions of Mr. Deshmukh based on the
orders passed in the previous proceedings between Vithal and his brother
Shankar. In SCS No.182 of 1997, Vithal had deposed that in the year 1982,
there was a partition amongst the sons of Devram. The family had no land at
Louki. He was cultivating the land bearing Gat No.66 (the suit land), which
was owned by Kashinath, father of Machindra, as a cultivator. Eventually, in
SCS No.182 of 1996, learned Civil Judge returned a finding that the suit
property did not belong to Vithal and it was not part of the joint family property
of Devram.
29. Even if the aforesaid deposition and the judgment in SCS No.182 of
1996 are taken at their face value, it becomes abundantly clear that Vithal,
while denying the title over the suit property, categorically asserted that he
was in possession of the suit property as a cultivator thereof, since 1967. The
claim of possession over the suit property finds, prima facie, support in the
entries in the revenue record. Resultantly, the submission of Mr. Deshmukh
that, on account of the discovery of new facts and material, the order in Misc.
Civil Appeal No.64 of 2012 does not preclude the Court from taking a different
view of the matter at an interim stage, does not merit acceptance.
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30. The decision in the case of Arjun Singh V/s. Mohindra Kumar
(supra), may not assist the Respondents - Defendants. In the said case, the
Supreme Court enunciated that the principle underlying the distinction
between the rule of res judicata and a rejection on the ground that no new
facts have been adduced to justify a different order is vital. If the principle of
resjudicata is applicable to the decision on a particular issue of fact, even if
fresh facts were placed before the Court, the bar would continue to operate
and preclude a fresh investigation of the issue, whereas in the other case, on
proof of fresh facts, the court would be competent, nay,, would be bound to
take those into account and make an order conformably to the facts freshly
brought before the court.
31. In the case at hand, as noted above, the factum of possession of the
predecessor in title of the Plaintiffs does not get displaced by the discovery of
fresh facts. The deposition of Vithal in the previous proceedings, even if
taken at par, lends support to the claim of possession over the suit property
as a cultivator.
32. The aforesaid factors render the reliance on the decisions of Padhiyar
Prahladji Chenaji (deceased) through LRs v/s. Maniben Jagmalbhai
(deceased) through LRs and Ors. and Maria Margarida Sequeria
Fernandes and Ors. V/s. Erasmo Jack De Sequeria (dead) through LRs
and Ors. (supra) inapposite. In Padhiyar (supra), case, it was enunciated
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that, once a suit is held not maintainable, no relief of injunction can be
granted. Injunction may be granted even against the true owner of the
property only when a person seeking relief is in lawful possession and
enjoyment of the property and also legally entitled to be in possession not to
dispossess him, except in due process of law.
33. In Maria Margarida Sequeria (supra), it was held that the
Respondents' suit for injunction against the true owner was not maintainable,
when it was established beyond doubt that the Respondents was only a care
taker and he ought to have given possession of the premises to the true
owner of the suit property on demand. As the respondents did not claim any
title over the suit property, and, he had not filed any proceedings disputing the
title of the Appellant.
34. In the case at hand, there is prima facie material to indicate that the
predecessor in title of the Plaintiffs has been in possession of the suit property
lawfully. In the previous proceedings, the predecessor in title of the Plaintiffs
had asserted his claim of possession over the suit property, and reliefs have
also been granted in favour of the Plaintiffs and against the vendors of the
Respondents.
35. In the totality of the circumstances, in my considered view, the learned
District Judge exceeded the jurisdictional limits in interfering with the
discretionary order passed by the Trial Court.
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36. Resultantly, the Writ Petition deserves to be allowed.
37. Hence, the following order :
ORDER
(i) The Writ Petition stands allowed.
(ii) The impugned order dated 29 October 2025 in Misc. Civil Appeal
No.19 of 2025 passed by the learned District Judge, Yeola, Nashik, stands
quashed and set aside, and, the order dated 7 August 2025 passed by the
Trial Court on an application for temporary injunction (Exh.5) in RCS No.151
of 2025, stands restored.
(iii) Rule made absolute to the aforesaid extent.
(iv) No costs.
( N.J.JAMADAR, J. )
38. At this stage, Mr. Deshmukh, the learned Counsel for the Respondents
seeks stay to the execution and operation of this order.
39. In the light of the view which this Court is persuaded to take, the Court
does not find any justifiable reason to stay the execution and operation of this
order.
40. The oral application for stay stands rejected.
( N.J.JAMADAR, J. )
Signed by: S.S.Phadke
Designation: PS To Honourable Judge
Date: 17/12/2025 19:30:50
