High Court
Legal Reasoning
1 9.WP-2900-2024.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD9 WRIT PETITION NO. 2900 OF 2024MANIK RAMRAO BHATANE AND OTHERSVERSUSPANDHARI GAHINAJI KAMBLE AND OTHERS…..Advocate for the Petitioner : Mr.Kedar Balbhim R.Advocate for all Respondents : Mr. Sandip C.Swami Chakurkar… CORAM : SHAILESH P. BRAHME, J. DATE : 17th FEBRUARY 2025PER COURT :1.Heard both sides finally at the admission stage.2.The petitioners/original plaintiffs have preferred this petitionagainst order dated 04.01.2024 passed by learned DistrictJudge,3,Latur in M.C.A.No.99 of 2022. They have filed R.C.S No. 189of 2022 for declaration and injunction. The application for temporaryinjunction at Exhibit-5 was partly allowed granting only order ofstatus quo on 20.08.2022 by the trial court. Being aggrieved, appealwas preferred by them. The impugned judgment and order waspassed not only dismissing the appeal but also rejecting applicationat Exhibit-5.3.The controversy between the parties is in respect of old SurveyNos. 34/1 @ 34/A and 34/G. Under the consolidation scheme,Survey No. 34/1 @ 34/A, was formulated into gut no. 188
Legal Reasoning
2 9.WP-2900-2024.doc measuring 26R. On the basis of khasara patrak, village map, 7/12extract and extract of the consolidation proceedings, the petitionersclaims to be owner and in possession of the said land. It is their casethat since beginning they are actually cultivating it which is not theproperty either included in Gavthan or belonging to the government.The respondents obstructed their possession under the pretext thatthey have right to usage over the graveyard, earmarked in old surveyno. 34/G to the extent of 5R which is part and parcel of the gut no.188.4.Learned counsel Mr.Kedar for the petitioners submits that thelower appellate court committed error of jurisdiction in dismissinghis appeal as well as rejecting application below Exhibit-5. There wasno appeal at the instance of respondents against the order of status-quo passed by the trial court. He would submit that after consideringrevenue record, order of status-quo was passed in favour of hisclients. It is further contended that respondents already had alternateland for the graveyard which was subject matter of acquisition andthe respondents are not using alleged 5R of the land for the saidpurpose. The findings recorded by the lower Judge in respect ofconsolidation proceedings are perverse. Though petitioners namesare recorded in others right column, it cannot be concluded at thisstage that they are not in possession. He relies on the judgment ofSupreme Court in the matter of Wander Ltd. and Ors. Vs. Antox IndiaP. Ltd. reported in 1990 Supp(1)SCC727 to buttress that lowerappellate court exceeded its jurisdiction. 3 9.WP-2900-2024.doc 5.Per contra, learned counsel Mr.Swami appearing for therespondents would support impugned judgment and order. He wouldsubmit that there is absolutely no prima-facie material on record toindicate that petitioners are in possession of 26 R of gut no. 188. Thelower appellate court is justified in drawing correct inference fromdocuments of consolidation proceedings wherein petitioners havebeen recorded in others right column. It is vehemently submitted thatsubject matter is gavthan land and the petitioners have not taken anysteps to correct the revenue record. It is further submitted that theyhave alternate remedy if they are aggrieved by the record of rightand the consolidation proceedings. To file a suit is not the remedy.For that purpose reliance is placed on the judgment of this Court inthe matter of Mrs. Geetabai Mahagulal Panchbudhe and another vs.Kailash Prakashchandra Makkad in Writ Petition No. 5746 of 2017.6.I have considered rival submissions of the parties.Undisputedly, application Exhibit-5 filed by the petitioners wasallowed to the extent of order of status-quo. Being aggrieved,petitioners preferred M.C.A No. 99 of 2022 before the lowerappellate court. There was no contemporary appeal filed by therespondents. The lower appellate court not only dismissed the appealof the petitioners but vacated order of status-quo by rejectingapplication at Exhibit-5. This type of exercise is strongly objected bythe petitioners on the basis of law laid down by Hon'ble SupremeCourt in the matter of Wander Ltd. and Ors. (supra). 4 9.WP-2900-2024.doc 7.It is relevant to refer to paragraph no. 9 of judgment of ApexCourt in the matter of Wander Ltd. and Ors. (supra) which is asfollows :9. The appeals before the Division Bench were against the exercise of discretion bythe Single Judge.In such appeals, the Appellate Court will not interfere with the exercise of discretionof the court of first instance and substitute its own discretion except where thediscretion has been shown to have been exercised arbitrarily, or capriciously orperversely or where the court had ignored the settled principles of law regulatinggrant or refusal of interlocutory injunctions. An appeal against exercise of discretionis said to be an appeal on principle. Appellate Court will not reassess the materialand seek to reach a conclusion different from the one reached by the court below ifthe one reached by the court was reasonably possible on the material. The appellatecourt would normally not be justified in interfering with the exercise of discretionunder appeal solely on the ground that if it had considered the matter at the trialstage it would have come to a contrary conclusion. If the discretion has beenexercised by the Trial Court reasonably and in a judicial manner the fact that theappellate court would have taken a different view may not justify interference withthe trial court's exercise of discretion.After referring to these principles Gajendragadkar, J. in Printers (Mysore) PrivateLtd. v. Pothan Joseph [1960]3SCR713 said : ... These principles are well established, but as has been observed by ViscountSimon in Charles Osention & Co. v. Johnston the law as to the reversal by a courtof appeal of an order made by a judge below in the exercise of his discretion iswell established, and any difficulty that arises is due only to the application of wellsettled principles in an individual case.The appellate judgment does not seem to defer to this principle.8.The jurisdiction of lower appellate court under Order 43 ofC.P.C is that of principle in nature. Re-appreciation is not permissible.When a view taken by the trial court is found to be reasonable andprobable, it is not permissible to interfere with the findings unlessthere is perversity or arbitrariness. These principles laid down byApex Court in respect of above referred judgment are totally 5 9.WP-2900-2024.doc overlooked by lower appellate court. After considering entire orderbelow Exh.5 and entire impugned judgment and order, I am of theconsidered view that lower appellate court indulged into re-appreciation of evidence. There are contentious issues between theparties which can be resolved by full-fledged trial. 9.Merely because there is entry of petitioners’ names in othersright column and reference of Gavthan in ownership column wouldnot lead to the conclusion that petitioners are not in possession of thesubject matter. Petitioners have placed on record khasara patrak,village map and 7/12 extract and the extracts of the consolidationproceedings to make out a case that they are actually cultivating thesuit land. It is upto the trial court to adjudicate as to the nature of thepossession and as to the title of the petitioners. But at this juncture itreveals that while partly allowing application exhibit-5, the trial courtreferred to the material produced by the parties and granted order ofstatus-quo. A reasonable view has been taken by the trial court. Itshould not have been interfered with by the lower appellate court. 10.The statement of the respondents that the state government isnot a party to the proceedings as the suit land is shown to be ofgavthan land cannot be entertained at this juncture. It would be openfor the respondents to agitate this ground before the trial court. Thepetitioners are not seeking correction of the revenue record orsoliciting any orders in respect of consolidation proceedings. Theyhave filed suit for declaration, injunction on the basis of title and 6 9.WP-2900-2024.doc possession. Therefore, plea of alternate remedy has no substance. 11.Learned counsel for the respondents submitted that therespondents are entitled to use part of gut no. 188 as graveyard atleast to the extent of 5R. This being one of the contentious issues,needs to be adjudicated and can not be decided at this juncture.There is prima-facie material to show that petitioners are inpossession of the suit land. It is desirable to protect their possessiontill final adjudication of the suit. 12.The respondents relied on the judgment of this court in Mrs.Geetabai Mahagulal Panchbudhe (supra), that case is distinguishableon the facts. In that case, the petitioners who are defendants werechallenging order of the trial court for rejection of their applicationpreferred under Section 36B of Maharashtra Prevention of theFragmentation and Consolidation of Holdings Act,1947. In thatcontext, the observations are recorded in paragraph no.15. We havealready made it clear that petitioners are not challenging the revenuerecord or order passed by any revenue authority. The judgment citedby the respondents is of little help to them.13.I am of the considered view that lower appellate courtcommitted error of jurisdiction and the findings are against the ratiolaid down by Hon'ble Supreme Court in the matter of Wander Ltd.and Ors. (supra).I therefore pass following order :
Decision
7 9.WP-2900-2024.doc ORDER a)Writ petition is allowed. b) The judgment and order dated 04.01.2024 passed bylearned District Judge,Latur in Misc.Civil Appeal No.99 of2022 is quashed and set-aside and order passed by the trialcourt below Exhibit-5 of 20.08.2022 is restored. c) There shall be no order as to costs. [ SHAILESH P. BRAHME, J.] vsj..