Bombay High Court
Moreshwar S/O Natthuji Mohture vs Samalochan Ekta Co-Op. Housing Society ... on 7 January, 2025
2025:BHC-NAG:346
Judgment 1 J-WP No.2793.2020.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2793 OF 2020
1) Moreshwar S/o Natthuji Mohture, (Ori. Deft. No.1)
Aged about 50 years, Occ.- Agriculture,
2) Gajanan S/o Natthuji Mohture, (Ori. Deft. No.2)
Aged about 55 years, Occ.- Agriculture,
3) Khemchand S/o Natthuji Mohture, (Ori. Deft. No.3)
Aged about 57 years, Occ.- Agriculture,
Petitioner Nos.1 to 3, R/o. Wannjara,
Nagpur, Tahsil & District Nagpur.
4) Smt. Prabhabai Wd/o Wamanrao Kukde, (Ori. Deft. No.6)
Aged about 48 years, Occ.- Household,
R/o. Mahalle Layout, Yerkheda,
Tahsil Kamptee, District Nagpur. .... PETITIONERS.
// VERSUS //
1) Samalochan Ekta Co-opertive Housing (Ori. Plaintiff)
Society Ltd., Through its President,
Mahboob S/o Shaikh Ismail,
Having its office at Satranjipura,
Nagpur.
2) Tahsildar, Nagpur Rural, (Ori. Deft. No.7)
Near Vasantrao Deshpande Hall,
Civil Lines, Nagpur. .... RESPONDENTS
_____________________________________________________________
Mr. Madhur Deo, Advocate for Petitioners.
Mr. A. A. Madiwale, Assistant Government Pleader for
Respondent No.2.
_____________________________________________________________
Judgment 2 J-WP No.2793.2020.odt
CORAM : ABHAY J. MANTRI, J.
DATE : 07th JANUARY, 2025.
ORAL JUDGMENT.
1. Heard learned Advocate Mr. Madhur Deo, for the
petitioners and learned Assistant Government Pleader Mr. A. A.
Madiwale, for respondent No.2. None present for respondent No.1,
though served.
2. Rule. Rule made returnable forthwith.
3. The petitioners are challenging the judgment and order
dated 30.07.2020, passed by the learned Ad-hoc District Judge-2,
Nagpur, in M.C.A. No. 47/2020, whereby confirmed the order dated
02.01.2020, passed by the learned 14th Joint Civil Judge, Senior
Division, Nagpur, below Exhibit-5 and Exhibit-68, in Regular Civil
Suit No.692/2014, thereby granted an injunction in favour of the
plaintiff and restrained the defendants/petitioners from carrying out
any construction and from creating third party interest over the Suit
property.
4. Brief facts of the plaintiff's case are as under :
(i) The claim of the plaintiff, i.e. respondent No.1 herein, is
a Society registered under Section 9(1) of the Maharashtra
Judgment 3 J-WP No.2793.2020.odt
Co-operative Societies Act, 1960. The father of defendant Nos.1 to 6,
late Natthuji Chimanji Mohture, was the exclusive owner of 4 acres of
Khasra No.109, out of 7.31 HR. (total 18 Acres), situated at Wanjra,
Nagpur. It further appears that Natthuji Mohture, from time to time,
sold out 14.50 Acres of land by registered sale deeds in favour of the
plaintiff Society. Also, Natthuji Mohture executed an agreement to
sell of the remaining portion of 4 acres of land in favour of the
plaintiff vide Agreement to Sale dated 09.02.1999. Based on the two
documents, the plaintiff is in possession of the suit property.
(ii) Defendants Nos.1 to 6 are the legal heirs of Natthuji
Mohture, who were aware of all the transactions between Natthuji
Mohture and the plaintiff Society. However, defendant Nos.1 to 5
have executed a Relinquishment deed in favour of defendant No.6.
Based on the said Relinquishment deed, defendant No.6 mutated her
name in the Revenue Record. She claimed her right over the
remaining 4 acres of land; therefore, the plaintiff filed the suit for
specific performance of the contract against the defendants, wherein
it filed applications Exhibit 5 and 68 for grant of injunction.
5. The defendants resisted the plaintiff's claim, contending
that no agreement to sale, as alleged by the plaintiff, has been
Judgment 4 J-WP No.2793.2020.odt
executed in their favour at any time. Both the documents are forged
and fabricated, and based on the said two documents, the plaintiff
could not get any right in the suit property, and therefore, they
denied that the plaintiff is in possession of the said 4 Acres of land.
On the contrary, they claimed that they were in possession of the said
4 Acres of land and, therefore, they prayed for the dismissal of the
applications Exhibit-5 and Exhibit-68.
6. After hearing both parties, the learned Trial Court, by
order dated 02.01.2020, allowed the applications Exhibit-5 and
Exhibit 68, thereby restraining the defendants from making any
construction on the Khasra No.109/1, admeasuring 3.26 HR and also
restrained from creating third party interest over the suit property.
Being aggrieved by the said order, the defendants have preferred the
Misc. Civil Appeal No.47/2020 before the learned Ad-hoc District
Judge -2, Nagpur. After considering the documents on record, the
learned Ad-hoc District Judge 2 dismissed the appeal by confirming
the order passed by the learned Trial Court. Being aggrieved by the
same, the defendants/petitioners have preferred this petition.
7. The learned Advocate, Mr. Madhur Deo, for the
petitioners vehemently contended that no agreement to sale, as
Judgment 5 J-WP No.2793.2020.odt
alleged, was executed in favour of the Society, and, therefore, the
Society could not get any right to possess the said property. He
further submitted that the plaintiff had filed a Regular Civil Suit
No.5115/2012 by claiming relief of specific performance of the
contract against the defendants in the said suit. The plaintiff had filed
an application for a grant of injunction against the defendants in that
suit, wherein the Court, after considering the documents on record,
held that the plaintiff failed to make out the prima facie case and,
therefore, rejected the said application. He also drew my attention to
para Nos.8 and 9 of the said order. He submitted that the Court in the
said suit has categorically observed that the plaintiff Society is
claiming their right based on the agreement of sale dated
01.02.1999. However, the said agreement to sale was unregistered,
and the stamp papers were purchased on 09.02.1999; therefore, the
Court has raised doubt about the execution of the said agreement to
sale. Hence, the learned Advocate for the petitioners submitted that
the plaintiff filed another suit and in the said suit, he claimed a
similar relief; therefore, the plaintiff is not entitled to the relief as
prayed. However, the learned Trial Court, as well as the learned First
Appellate Court, has not considered the said facts in its proper
perspective and has erred in granting an injunction against them.
Judgment 6 J-WP No.2793.2020.odt
Hence, he urged to allow this petition by setting aside the order
passed by the learned Trial Court and the First Appellate Court.
8. At the outset, it appears that the original owner, Natthuji
Mohture, executed eight different sale deeds from 1987 to 2001, in
which he sold 14.50 Acres of land in favour of the plaintiff Society.
According to the plaintiff, Natthuji Mohture also executed an
Agreement to Sale dated 09.02.1999 of the remaining 4 acres of land
in its favour, and, therefore, based on said document, they have the
possessory right over the said property.
9. It is pertinent to note that all the sale deeds and
agreement to sell were executed between 1987 and 2001, and the
suit was filed in 2014, i.e. after 14 years. On query put to the learned
Advocate for the petitioners to show their possession over the
disputed property, at that time, the Advocate for the petitioners has
invited my attention to the 7/12 extract in respect of Khasra
No.109/1, wherein the name of defendant No.6/petitioner No.4 has
been recorded as owner. However, in the cultivation column, the said
land is shown as barren, except that no other document has been
pointed out by the learned Advocate for the petitioners to show that
the petitioners are in possession of the disputed property.
Judgment 7 J-WP No.2793.2020.odt
10. On perusal of the order passed below Exhibit-5 and 68,
passed by the learned Trial Court, it reveals that after considering the
documents, the learned Trial Court held that the plaintiff has made
out a prima facie case to grant an injunction and accordingly granted
the injunction, thereby defendants were restrained temporarily from
make out any construction on the land of Khasra No. 109/1, till the
decision of the suit and not to create any third party interest. The
said order was passed on 02.01.2020, and the First Appellate Court
confirmed the order on 30.07.2020.
11. By this order, the learned Trial Court has directed the
defendants not to make out any kind of construction over the
disputed property till the disposal of the suit, as the plaintiff is
claiming its right over the disputed property as a possessor. The said
order would not cause any harm to the defendants, but by this order,
the further multiplicity of the proceedings will be curtailed.
12. Considering the aforesaid facts and documents on the
record, I do not find any illegality or perversity in the impugned
orders. On the contrary, the impugned orders appear well-reasoned
and require no interference in the writ jurisdiction. Thus, in my view,
Judgment 8 J-WP No.2793.2020.odt
the petition, being devoid of merit, is dismissed with no order as to
costs. Rule is discharged.
13. Inform the concerned Courts accordingly.
(ABHAY J. MANTRI, J.)
Kirtak
Signed by: Mr. B.J. Kirtak
Designation: PA To Honourable Judge
Date: 14/01/2025 17:32:27
