High Court

Legal Reasoning

wp-13588-2023 judg.odt(1)IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 13588 OF 20231.Ganesh @ Vijay Bansi PatilAge: 72 Yrs., Occu: Agri.2. Vilas Bansi PatilAge: 68 Yrs., Occu: Agri.3. Vishvanath Bansi PatilAge: 65 Yrs., Occu: Agri.All R/o. Gandhi Chouk,Shahada, Tal: Shahada, Dist : Nandurbar..PetitionersVERSUS1.Vishvajit Bansi PatilAge: 55 Yrs., Occu: Agri.2. Sukanya W/o. Vishvajit PatilAge: 52 Yrs., Occu: Agri.Both R/o. Gandhi Chouk, Shahada, Tal: Shahada, Dist: Nandurbar..Respondents ...Advocate for Petitioners : Mr. P.N. JainAdvocate for Respondent Nos.1 & 2 : Mr. S.P. Shah... CORAM : S. G. CHAPALGAONKAR, J. RESERVED ON : JUNE 23, 2025PRONOUNCED ON : JULY 15, 2025JUDGMENT :-1.Rule. Rule made returnable forthwith. Heard finally byconsent of parties.2.The petitioners / original plaintiffs impugn order dated30.09.2023 passed by learned District Judge Shahada, in Misc. CivilAppeal No.13 of 2023, upholding order dated 18.08.2023 passed by wp-13588-2023 judg.odt(2)learned Civil Judge, Senior Division, Shahada below Exhibit-5, inRegular Civil Suit No.09 of 2023, thereby rejecting applicationseeking temporary injunction against defendants. 3.The petitioners instituted R.C.S. No.09 of 2023 seekingrelief of declaration of ownership and perpetual injunction againstrespondents and others. It is contention of plaintiffs that land gatno.112 and 185 admeasuring 1H 30R situated at Shahada, DistrictNandurbar was possessed by Bansi Badhu Patil as a protected tenant.Whereas, an educational trust namely Leva Patidar Boarding wasoriginal owner. On death of Bansi Badhu Patil, name of plaintiffs anddefendants was recorded as his legal heirs. Accordingly, each ofplaintiffs and defendants have 1/8th share in suit property. Accordingto plaintiffs, defendant no.1 got executed false, bogus and forgedrelinquishment deed dated 08.12.2004. Eventually, mutation entryno.1305 was certified. Later on, defendant no.1 entered intocompromise with educational trust and got transfer of land in hisname. Defendant no.1, in order to deprive the rights of plaintiffs,partitioned the property between himself and his wife i.e. defendantno.11 and changed the nature of property for alienation. Hence, suitis filed for reliefs claimed. Defendants filed written statement, deniedplaintiffs case and asserted exclusive ownership and possession overthe suit property. wp-13588-2023 judg.odt(3)4.The Trial Court after considering rival submissionsrejected T. I. application filed by plaintiffs below Exhibit-5 vide orderdated 18.08.2023. The plaintiffs challenged said order in Misc. CivilAppeal No.13 of 2022. However, learned District Judge, Shahadadismissed appeal vide his order dated 30.09.2023. 5.Mr. Jain, learned advocate appearing for petitionerssubmits that revenue record clearly depicts entry in name of BansiBadhu Patil as protected tenant on suit land under Section 3(A) of theBombay Tenancy and Agricultural Lands Act, 1948 (‘BTAL Act’ forshort). Upon death of Bansi Badhu Patil, name of all legal heirs wasmutated in record of rights vide M.E. No.1015 dated 01.12.2004. Mr.Jain would further submit that alleged relinquishment deed reliedupon by defendants is an unregistered document and contents ofsame are specifically denied by plaintiffs. The mutation entryno.1305 dated 10.04.2005, which is certified based on suchrelinquishment deed would not confer right in favour of defendantno.1. Mr. Jain would further invite attention of this Court to orderdated 01.08.2023 passed in Writ Petition No.5479 of 2023 and submitthat in earlier round of litigation, this Court had issued directions toTrial Court to decide application Exhibit-5 afresh by taking intoconsideration additional documents pertaining to Inquiry ApplicationNo.17 of 2019, which has bearing on controversy in issue, but without wp-13588-2023 judg.odt(4)considering impact of additional documents, impugned orders arepassed. 6.Mr. Jain supports his contentions relying on observationsof Supreme Court in case of Ramakant Ambalal Choksi Vs. HarishAmbalal Choksi reported in MANU/SC/1270/2024 to contend thatnotwithstanding the Rule of lis pendens in Section 52 of the T.P. Act,there can be occasion for the grant of injunction restraining pendentelite transfers in a fit and proper case. Mr. Jain further relies onjudgments of Hon’ble Supreme Court in case of Kalpraj Dharamshi Vs.Kotak Investment Advisors Limited reported in MANU/SC/0174/2021and Premlata @ Sunita Vs. Naseeb Bee reported in AIR (SC) 20221560 and Maharwal Khewaji Trust (Regd), Faridkot Vs. Baldev Dasreported in AIR (SC) 2005 104. Mr. Jain endeavours to point out thatnow defendant no.1 is creating third party interest in suit propertyand for that purpose relied upon a copy of index of registereddocument no.5115 of 2024 dated 30.10.2023.7.Per contra, Mr. Subodh Shah, learned advocate appearingfor respondents would submit that present suit is instituted in theyear 2023. In first round of litigation, both Courts had decidedagainst petitioners and refused to grant temporary injunction. Evenafter remand of matter, both Courts have concurrently held thatplaintiffs failed to prove prima facie case and bring on record otherparameters essential for grant of temporary injunction. Mr. Shah wp-13588-2023 judg.odt(5)would further submit that petitioners’ claim is based on contentionthat Bansi Badhu Patil was protected tenant on suit land. However,orders passed by revenue authorities clearly depicts that such tenancyrights never exist, eventually trust had obtained certificate underSection 88(b) of BTAL Act. Later on, trust obtained permission fromCharity Commissioner and compromised with defendant no.1 whowas in exclusive possession of suit property. Eventually, as per orderpassed by Joint Charity Commissioner, Nashik, in Inquiry ApplicationNo.17 of 2019, suit land is transferred in name of defendant no.1 videregistered transfer deed. He would submit that undisputedlydefendant no.1 is in possession of suit property. Mr. Shah wouldfurther urge that in year 2004, plaintiffs relinquished their rights infavour of defendant no.1. Since then, name of defendant no.1 wasexclusively shown as possessor over suit land. Now, plaintiffs areasserting their right over suit property without any basis.8.Having considered submissions advanced by learnedadvocates appearing for respective parties and after going through thereasons recorded in impugned order, it can be observed that the thirstof plaintiffs’ claim is based on alleged tenancy rights of their fatheri.e. Bansi Badhu Patil over suit property. Admittedly, Leva PatidarBoarding Trust is owner of land. Although initial mutation entryshows existence of tenancy right of plaintiffs’ father, later on,competent tenancy authority declared him unconcern with suit wp-13588-2023 judg.odt(6)property, consequently certificate under Section 88(B) of BTAL Act,1948 is issued. The entry of termination of tenancy is taken in recordof rights. Therefore, although Bansi Badhu Patil possessor, upon hisdeath, defendant no.1 continued his unlawful possession. On primafacie consideration of material on record, both Courts found thatorder in Tenancy Application No.01 of 2016 has attained finality. Thetenancy rights, if any, were extinguished by order of competentauthority, which led to issuance of certificate under Section 88(B) ofBTAL Act, 1948. Eventually, the whole basis of plaintiffs’ claim thatBansi Badhu Patil was a protected tenant and they are entitled toinherit tenancy, does not stand to scrutiny. The Trial Court has furtherobserved that mutation entry no.1275 dated 20.02.1962 also depictsthat tenancy rights of Bansi Badhu Patil were already terminated byrevenue authority. 9.Perusal of order passed by Appellate Court in Misc. CivilAppeal No.13 of 2023 would suggest that there is elaborateconsideration of additional documents relied by petitioners, in respectof Inquiry No.17 of 2019 before Joint Charity Commissioner, Nashik.It was an application submitted by trust under Section 36(1)(a) ofMaharashtra Public Trust Act, 1950 seeking permission tosell/exchange trust property. It is true that in an affidavit submittedby defendant no.1 before Joint Charity Commissioner, there isstatement that legal heirs of Bansi Badhu Patil have relinquished their wp-13588-2023 judg.odt(7)share from suit property and he being legal heir of Bansi Badhu Patilcompromised the case with trust. However, only on the basis of suchstatement, particularly in light of relinquishment deed dated08.12.2004 and consequential mutation entry no.1305 certified on10.04.2005, plaintiffs cannot assert right over suit property. The issue whether unregistered relinquishment deeddated 08.12.2004 is admissible in evidence or whether the contents ofsuch relinquishment deed can be treated as estoppel against plaintiffsare the questions to be determined at trial. However, on prima facieconsideration of material on record, in wake of trust transferring suitproperty in favour of defendant no.1 as per permission fromcompetent authority, the Trial Court as well as Appellate Court rightlyconcluded that plaintiffs prima facie failed to establish their right oversuit property. 10.Once court of first instance exercises its discretion togrant or refuse relief of temporary injunction and said exercise ofdiscretion is based upon prima facie consideration of material placedbefore the Court supported with cogent reasons, the Appellate Courtwill loath to interfere simply because on de novo consideration ofmatter, it is possible for Appellate Court to form its opinion on theissue of prima facie case, on balance of convenience, irreparableinjury and equity. The reference can be given to the ratio laid downby the Hon’ble Supreme Court in the case of Skyline Education wp-13588-2023 judg.odt(8)Institute (India) Pvt. Ltd Vs. S.L. Vaswani reported in (2010) 2 SCC142. In light of aforesaid exposition of law and fact that foundationof plaintiffs’ case itself is shaken in light of orders passed bycompetent authority under Bombay Tenancy and Agricultural LandsAct, it is difficult to hold that plaintiffs fulfill requirement for grant oftemporary injunction. 11.It is trite law that Writ Court can interfere in the orderpassed by the Trial Court or Appellate Court only when there isjurisdictional error, non-application of mind or perversity in findings.This Court finds that Courts below have dealt with all relevant aspectsof matter and appropriately applied relevant provisions of law to thefacts of case. In that view of matter, no case is made out to causeinterference in writ jurisdiction under Article 227 of Constitution ofIndia. 12.In result, writ petition stands rejected.13.Rule discharged. (S.G. CHAPALGAONKAR, J.)Mujaheed//