Bombay High Court
Abhiman S/O Parashram Chaudhari vs Shriram S/O Demaji Chaudhari on 2 January, 2025
2025:BHC-NAG:80
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 3389 OF 2020
1) Abhiman s/o Parashram Chaudhari
age : 70 years, Occu : Agriculturist
2) Subhash s/o Abhiman Chaudhari, .. Petitioners
age 50 years, Occ : Agriculturist
Both R/o Gondegaon, Tq. & Dist.
Washim
Versus
1) Shriram s/o Demaji Chaudhari,
age : 65 years, Occ : Agriculturist
2) Gopal s/o Shriram Chaudhari,
age : 35 years, Occ : Agriculturist
3) Santosh s/o Shriram Chaudhari,
age : 30 years, Occ : Agriculturist
4) Devidas s/o Tukaram Gawande
age : 65 years, Occ : Agriculturist
5) Bhanudas s/o Tukaram Gawande
age : 50 years, Occ : Agriculturist
6) Santosh s/o Devidas Gawande .. Respondents
age : 40 years, Occ : Agriculturist
7) Gopal s/o Devidas Gawande
age : 38 years, Occ : Agriculturist
8) Narayan s/o Devidas Gawande
age : 35 years, Occ : Agriculturist
9) Ganesh s/o Devidas Gawande
age : 30 years, Occ : Agriculturist
10) Sunil s/o Ramdas Gawande
age : 35 years, Occ : Agriculturist
All R/o Gondegaon, Tq. & Dist. Washim
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Ms. Aastha Sharma, Advocate h/f Mr. P. R. Agrawal, Advocate for
Petitioners.
None for the respondents.
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CORAM : ABHAY J. MANTRI, JJ.
DATED : JANUARY 02, 2025
ORAL JUDGMENT
I heard the learned counsel for the petitioners at length.
None appears for the respondents though served.
(2) The petitioners/original plaintiffs are constrained to
approach this Court aggrieved by the Judgment and order dated
07/10/2020 passed by learned Ad-hoc District Judge-1 Washim in
Misc.Civil Appeal No.15/2020 thereby allowed the appeal and rejected
the application for a grant of a temporary injunction filed by the
petitioners.
(3) In brief, the plaintiffs have filed the suit for permanent
injunction in respect of Gat No.107, admeasuring 1H 26R out of the
total area of 2H 47R situated at village Gondegaon Taluka and District
Washim (hereinafter referred to as 'suit field'). The bone of the
contention of the plaintiffs is that they have been in settled possession
of the suit field for a long time; however, in the year 2019, the
defendants, with ill motives, tried to take possession of the suit fields
illegally and, therefore, they have filed the suit.
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(4) The plaintiffs have also filed an application under Order
XXXIX Rules 1 and 2 of the Code of Civil Procedure(for short- 'CPC') for
the grant of a temporary injunction for restraining the defendants or
any person on their behalf from causing any interference in the
peaceful possession of the petitioners over the suit fields. Learned
Joint Civil Judge Junior Division (for short-"Jt.CJJD"), Washim, after
considering the rival contentions of the parties, allowed the application,
holding that "the plaintiffs have made out a prima-facie case and the
balance of convenience lies in their favour and, therefore, granted
interim injunction in their favour."
(5) Aggrieved by the said order, the defendants have
preferred Misc.Civil Appeal No.15/2020 before the learned Ad-hoc
District Judge-1 Wahim. After considering the pleadings of the parties,
the learned District Judge reversed the said order and rejected the
application filed by the plaintiffs. Hence, this petition.
(6) Learned Counsel for the petitioners vehemently
contended that the petitioners in support of their claim have produced
7/12 extracts of Gat No.107 of the years 1998-1999, 2006-2007,
2011-2012, 2018-2019, a certified copy of the extract of 8-A and
photocopy of sale deed dated 04/05/1979. Based on the said
documents, plaintiffs prima facie demonstrate that they are in
possession of the suit fields. The learned trial Court rightly considered
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the fact and held that plaintiffs had made out a prima facie case, and
the balance of convenience lies in their favour, so an injunction was
granted. However, the learned appellate Court failed to consider the
documents on record in its proper perspective and erred in discarding
the documents produced on record. The learned appellate Court has
erred in holding that "mere mutation entries are not evidence of the
ownership and actual physical possession." Thus, the findings given by
the learned appellate Court appear perverse and contrary to the settled
position of law. Therefore, Ms. Astha Sharma, learned counsel for the
petitioners submitted that the learned trial Court has rightly considered
the documents on record and that the petitioners are entitled to the
relief of injunction. Further, based on the documents, she urged for
allowing the petition.
(7) I have considered the contentions of the learned Counsel
for the petitioners and perused the impugned orders and record.
(8) At the outset, it appears that plaintiffs are claiming their
ownership, as well as possessory right over the suit fields based on the
sale deed dated 04/05/1979 and 7/12 extracts of Gat No.107 of the
year 1998-1999, 2006-2007, 2011-2012, and 2018-2019, a certified
copy of the extract of 8-A and photocopy of sale deed bearing
No.1306/1979. It is pertinent to note that the defendants have not
disputed that based on the registered sale deed dated 04/05/1979,
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plaintiff No.2 got the ownership and possessory right in the suit fields.
However, their only grievance is that the plaintiff No.2 had sold the suit
field to one Dnyanba Ganaji Bhalerao by registered sale deed dated
06/03/1982; said Dnyanba sold the said land to defendant Nos.1, 4
and 5 by registered sale deed dated 24/05/1983 and since then they
are in possession of the said land. But, based on the sale deeds,
neither Dnyanba's name nor defendants Nos.1, 4 and 5 have been
mutated in the revenue record. In such an eventuality, the plaintiffs
were taking undue advantage of the said fact and claiming their
possession over the suit fields; in fact, they are not in possession of the
suit fields.
(9) It is a settled position of law that the entries in the
revenue record, i.e. 7/12 extract, have presumptive value under the
Maharashtra Land Revenue Code unless the same is contrary proved.
Undisputedly, the plaintiffs' names are recorded in the 7/12 extract as
owner and possessor, indicating that the plaintiffs possess the suit
fields. Had it been the fact that in the year 1982-83, if plaintiff No.2
executed the sale deed in favour of Dnyanba and Dnyanba further
executed the sale deed in favour of defendant Nos.1, 4 and 5, in such
an eventuality, their names should have been mutated in 7/12 extract
based on the said sale deeds. Besides, if they had been in possession
for a long time, their names should have been recorded in the
cultivation column as possessor, but their names do not appear in the
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7/12 extract. Therefore, adverse inferences can be drawn against
them.
(10) To ascertain the fact that who is in possession of the suit
fields, the Court has to take into consideration the entries in the
revenue record, which have the presumptive value under the
Maharashtra Land Revenue Code and considering the presumptive
value to the entries in 7/12 record, the learned trial Court has rightly
held that based on the sale deed and entries in the 7/12 extract from
1998 to 2018-19 the plaintiffs have prima facie shown that they are in
possession of the suit fields and therefore, granted injunction in their
favour.
(11) The learned appellate Court, though observed that the
plaintiffs' names have been mutated in the 7/12 extract as owner and
possessor, however, erred in holding that "mere entries in the revenue
record are not the evidence of the ownership and actual physical
possession, but the same was used for fiscal purpose and collecting the
revenue," therefore, reversed the findings of the trial Court in that
regard. The learned appellate Court further observed that "plaintiffs
have suppressed the fact of execution of the exchange-deed dated
06/03/1982 in favour of Dnyanba and therefore, plaintiffs did not come
to the Court with clean hands while claiming the equity, thus, allowed
the appeal and set aside the order passed by the trial Court and
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rejected the application Exh.5.
(12) Thus, the findings recorded by the learned appellate
Court appear contrary to the facts on record and the settled position of
law. While considering the question of possession over the suit fields, it
is necessary to see who is prima facie in possession of the suit fields.
The plaintiffs have categorically demonstrated that their names have
been recorded in the 7/12 extract as owner and possessor from 1998
till the filing of the suit. The entry in the 7/12 extract has a
presumptive value unless contrary proved. In the case at hand, the
defendants also did not dispute the recording of the names of the
plaintiffs in the 7/12 extract and the cultivation column. Still, they only
claimed ownership and possessory rights based on the subsequent
transaction of 1982-83, but they failed to show their prima facie
possession over the suit fields based on the said transaction. Therefore,
in my view, the appellate Court erred in reversing the well-reasoned
findings recorded by the learned trial Court. Hence, based on the said
findings, the order of the appellate Court cannot be sustained in the
eyes of the law. On the contrary, the same appears to be improper. The
same is required to be set aside.
(13) Thus, it appears that the learned trial Court, after
considering the documents on record, rightly appreciated the same and
held that the plaintiffs have made out a prima facie case and granted
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an injunction in their favour. The findings recorded by the trial Court
are well-reasoned. However, the findings given by the learned appellate
Court, which discarded the entries in the 7/12 extract merely on the
assumption and presumption, could not be sustained in the eyes of
law. The first appellate Court seems to have been swayed away in
discarding the entries in the 7/12 record. Therefore, the same needs to
be quashed and set aside that being so interference is required.
(14) In the above background, it seems that petitioners have
made out a prima facie case for grant of injunction. Hence, I deem it
appropriate to allow the petition.
(15) Accordingly, the writ petition is allowed. The impugned
order dated 07/10/2020 passed by the learned Ad-hoc District Judge-1,
Washim, in Misc. Civil Appeal No.15/2020 is hereby quashed and set
aside, and the order passed by the learned trial Court is confirmed. No
order as to costs.
(16) Inform the learned trial Court.
[ ABHAY J. MANTRI, J. ]
KOLHE
Signed by: Mr. Ravikant Kolhe PAGE 8 OF 8
Designation: PA To Honourable Judge
Date: 06/01/2025 16:29:24
