Writ Petition No. 15195 of 2023 · Bombaybench High Court · 2025
Case Details
Ethape( 1 ) WP-15195-2023IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.15195 OF 2023WITHCIVIL APPLICATION NO.4322 OF 2024WITHCIVIL APPLICATION NO.6544 OF 2024WITHCIVIL APPLICATION NO.13810 OF 2024INWRIT PETITION NO.15195 OF 2023WITHCONTEMPT PETITION NO.631 OF 2024INCIVIL APPLICATION NO.4322 OF 2024Dnyaneshwar Baburao Bawaskar Age: 49 years, Occu. Agriculture, R/o. Sukali, Tq. Muktainagar, Dist. Jalgaon...PETITIONER VERSUS1.Dhanu Baburao Bawaskar,Age: 60 years, Occu. Labour,R/o. At Post Chapora, Tq. and Dist.Burhanpur, Madhya Pradesh (MP)-450331.2. Gopal Baburao BawaskarAge: 56 years, Occu. Labour,R/o. At Post Chapora, Tq. and Dist.Burhanpur, Madhya Pradesh (MP)-450331.3. Balu Baburao BawaskarAge: 58 years, Occu: Labour
Legal Reasoning
Ethape( 2 ) WP-15195-2023R/o. At Post Chapora, Tq. and Dist.Burhanpur, Madhya Pradesh (MP)-450331.4. Sadashiv Baburao Bawaskar,Age: 67 years, Occu. Labour,R/o. Near Datta Mandir, Central BankColony, Pimprala, Jalgaon,Taluka & Dist. Jalgaon. ...RESPONDENTSMr. Ajay D. Pawar, Advocate for the petitioner in WP/15195/2023.Mr. A. R. Sayed, Advocate for the Respondent Nos. 1 to 4 inWP/15195/2023 and Petitioner in CP/631/2024.CORAM:KISHORE C. SANT, J.RESERVED ON:30th APRIL 2025. PRONOUNCED ON:26th JUNE 2025.ORDER :-1.Heard Mr. Pawar, the learned Advocate for the Petitioner; Mr.Sayed, the learned Advocate for the Respondent Nos. 1 to 4; finally, atthe stage of admission, with the consent of the parties. 2.The original defendant has approached this Court challengingjudgment and order passed by the learned District Judge-3, Bhusawal,dated 5th December 2023, in Misc. Civil Appeal No.22 of 2023. The Ethape( 3 ) WP-15195-2023appeal of the respondents-original plaintiffs came to be allowed, therebyallowing Application Exh.6 in Regular Civil Suit No.4 of 2023, pendingbefore the learned Civil Judge, Junior Division, Muktainagar, Dist.Jalgaon. 3.The facts, in short, are that the present petitioner and therespondents are real brothers. The respondents filed Regular Civil SuitNo. 4 of 2023 against the present petitioner, praying for declaration thatall the brothers have 1/5 share in the suit property and for separatepossession. They further prayed for cancellation of the relinquishmentdeeds dated 13th October 2021, and 29th May 2020, executed by therespondents asserting that the same are not binding upon them. It is thecase of the respondents that the suit lands are the ancestral joint familyproperty. All the respondents were residing away from village. Theywere looking after the lands by coming to the village. The property wasrecorded in the names of all the brothers. The land was initiallycultivated by all, however, the respondent No.4 and other respondentsused to pay the petitioner for cultivation and used to take the crop share. Ethape( 4 ) WP-15195-2023All the brothers have invested amounts for the development of theproperty. Since the petitioner was youngest brother who residing in thevillage, he was thus a man of confidence only. For the purpose of gettingsubsidy, etc., the lands were shown in the name of Respondent Nos. 1 to3. The documents illegitimately benefited from the illiteracy ofRespondent Nos. 1 to 3. The petitioner got executed the documents ofrelinquishment deed, pretending them to be applications for takingrevenue entries. It was later on found that the name of RespondentNo.3 was deleted from the 7/12 extract. Upon making an inquiry, it wasrevealed that the petitioner had got relinquishment deeds signed by therespondents. In the same way, another relinquishment deed wasexecuted. The respondents got knowledge of these documents on 22ndJune 2022. Thereafter, the respondent asked the petitioner to partitionthe land and subsequently filed the suit.4.It is the case in the written statement of the petitioner that therespondents have executed relinquishment deeds in favour of thepetitioner. The documents of relinquishment deed are duly executed in Ethape( 5 ) WP-15195-2023the office of the Sub-registrar. The Tahsildar also granted permission toexecute the relinquishment deeds by letter dated 6th November 2021.Both the relinquishment deeds are thus, valid. He opposed the suit andExh.-6 Application. 5.The learned trial Judge rejected Exh.-6 Application by its orderdated 6th May 2023, holding that the plaintiffs failed to prove a primafacie case, the balance of convenience, and irreparable loss. It wasobserved that the documents of the relinquishment deeds are dulyexecuted after obtaining prior permission from the Tahsildar. The fact ofrelinquishment deeds is not denied. The denial is only about theknowledge of the nature of document. The mutation entries are alsotaken on the basis of relinquishment deeds. It is held that the petitioneris cultivating the land and that there is no challenge to the mutationentries and thus passed the order. 6.The learned District Judge, in an appeal, observed that therelinquishment deeds were without any consideration. The deeds Ethape( 6 ) WP-15195-2023themselves are challenged by the plaintiffs. There is no recital or clauseabout delivery of possession. When there is a dispute aboutrelinquishment deeds, there is a prima facie case in favour of therespondents. The Court relied on the affidavits of the owners of theadjacent lands. It is held that the petitioner has brought no material onrecord to show that he became an exclusive possessor of the suit land.The respondents have joint possession of the suit property alongwithpetitioner and, therefore, the defendants cannot be restrained frominterfering with the suit property till the decision of the suit. The learnedDistrict Judge thus allowed the appeal and subsequently allowed theapplication for temporary injunction. 7.Mr. Pawar, the learned Advocate appearing for the petitioner,vehemently submits that in view of aforesaid facts, since therelinquishment deeds are not denied, there is no question of denial ofownership of the petitioner. Prior permission was obtained from theTahsildar by following due procedure. The permission was specificallysought for the relinquishment deeds. The learned trial Court had rightly
Legal Reasoning
Ethape( 7 ) WP-15195-2023considered all these aspects and had passed a well-reasoned order. Thelearned District Judge erred in relying upon the affidavits of adjoiningowners. When the registered documents are very much on record, thereis no question of the District Judge relying upon affidavits of owners ofadjoining lands. He thus prays for allowing the writ petition. 8.In supports of his submission, the learned Advocate for thepetitioner relied upon the following judgments:(i)Wander Ltd. And Anr. Vs. Antox India P. Ltd.1;(ii)Laxmikant V. Patel Vs. Chetanbhai Shah and Anr.2;(iii)Mohd. Mehtab Khan & Ors. Vs. Khushnuma IbrahimKhan & Ors.3;(iv)Shyam Sel and Power Ltd. & Anr. Vs. Shyam Steel Industries Ltd.4;9.Mr. Sayed, the learned Advocate appearing for Respondents,vehemently opposed the petition. He submits that the petitioner used tocultivate the land on behalf of all the respondents. Since the respondents11990 (Supp) SCC 7272(2002) 3 SCC 653(2013) SCC 2214(2023) 1 SCC 634 Ethape( 8 ) WP-15195-2023happen to be illiterate persons, the petitioner took disadvantage and gotthe documents executed. So-called relinquishment deeds are an out-come of fraud in connivance with stamp vendor. The suit is for separatepossession and not just for possession. The so-called permission was alsoobtained from Tahsildar by the petitioner only. The Tahsildar does nothave any authority to grant such permission. He thus submits that theDistrict Judge has rightly considered all these aspects and has passed theorder. He relied on Section 43 of the Maharashtra Tenancy andAgricultural Land Act, and submits that the documents cannot be readinto evidence. On the relinquishment deeds, there is no signature of therespondents on each page. He further submits that there was challengeto the mutation entries. However, the same was dismissed by the learnedSub-Divisional Officer, Bhusawal, and mutation entry No.2539 dated 12thDecember 2021 was confirmed. He thus prays for dismissal of the writpetition. 10.In the case of Wander Ltd. And Anr. Vs. Antox India P. Ltd. (supra),the Hon’ble Apex Court was dealing with the provisions of Trade and Ethape( 9 ) WP-15195-2023Merchandise Marks Act, 1958, Order 39 Rule 1 and Order 43 of the CivilProcedure Code, 1908. It has laid down factors to be considered whileusing the discretion and also the scope for the appellate Court tointerfere with the exercise of discretion of the court of first instance. It isheld that, the discretion exercised by the first instance, in normal course,shall not be interfered with, unless the said discretion is found to beunreasonable or perverse. 11.In the case of Laxmikant V. Patel (supra), the Hon’ble Apex Courtconsidered the grant of injunction. It is held that the plaintiff must provea prima facie case. The other factors balance of convenience and thatthe plaintiff would suffer irreparable injury if the injunction is refused.It was the case of passing off action under the Trade and MerchandiseMarks Act, 1958.12.In the case of Mohd. Mehtab Khan (supra), it is reiterated that theinterference by the Appellate Court is not permissible unless it is foundthat the discretion exercised by the trial Court is palpably incorrect or Ethape( 10 ) WP-15195-2023untenable. If the view taken by the trial Court is a possible view, thensuch discretion shall not be interfered with. Paragraph No.20 of the saidjudgment reads as under:“20.In a situation where the learned trial court on a consideration ofthe respective cases of the parties and the documents laid before it was ofthe view that the entitlement of the plaintiffs to an order of interimmandatory injunction was in serious doubt, the appellate court could nothave interfered with the exercise of discretion by the learned trial Judgeunless such exercise was found to be palpably incorrect or untenable. Thereasons that weighed with the learned trial Judge, as already noticed,according to us, do not indicate that the view taken is not a possible view.The appellate court, therefore, should not have substituted its views inthe matter merely on the ground that in its opinion the facts of the casecall for a different conclusion. Such an exercise is not the correctparameter for exercise of jurisdiction while hearing an appeal against adiscretionary order. While we must not be understood to have said thatthe appellate court was wrong in its conclusions what is sought to beemphasised is that as long as the view of the trial court was a possibleview the appellate court should not have interfered with the samefollowing the virtually settled principles of law in this regard as laiddown by this Court in Wander Ltd. v. Antox India (P) Ltd..”13.In the case of Shyam Sel and Power Limited and Anr. (supra), theHon’ble Apex Court considered that, three tests are to be applied i.e.prima facie case, balance of convenience and irreparable injury. In thesaid case, while granting injunction, there was no discussion as to howthe prima facie case was made out by the plaintiff. The other twoaspects were not at all considered i.e. balance of convenience and Ethape( 11 ) WP-15195-2023irreparable injury likely to be caused. In that view of the matter, theorder passed by the learned Single Judge of this High Court wasquashed and set aside with a request to decide the application forinjunction afresh. 14.In the present case, it is seen that the injunction was granted bythe trial Court, considering that the original defendant-present petitionerwas cultivating the land. The learned Appellate Court held that thedefendant cannot be restrained from interfering with the suit propertytill the decision of the suit and allowed the application for temporaryinjunction. 15.Looking to the factual aspect, it is a matter of record that therelinquishment deeds are executed by the plaintiffs in favour ofdefendant. The ownership of the defendant is thus not questioned ordenied. The prior permission was also obtained from the Tahsildar byfollowing due procedure before executing relinquishment deeds. Thiswas considered by the trial Court while rejecting the application. The Ethape( 12 ) WP-15195-2023learned Appellate Court mainly relied upon the affidavits of theadjoining owners. Those are considered and given even more weightagethan the registered document. 16.The trial Court, in its order, specifically observed that affidavitscannot be considered in view of registered relinquishment deeds. Eventhe mutations entries are not challenged by the plaintiff, thus, itconsidered the prima facie case. The Court therefore did not find aprima facie case and balance of convenience in favour of the plaintiffsand consequently concluded that even the case of irreparable injury isalso not made out. 17.As against this, the learned District Judge considered that the suitproperties was joint family property of plaintiffs and defendant. All theparties were in joint possession over the suit property till relinquishmentdeed was executed. The Court, however, still considered that thoserelinquishment deeds to be without consideration and ignored the same.In paragraph No.14, the Appellate Court observed that the plaintiff had Ethape( 13 ) WP-15195-2023established and proved the possession over the land. This observation isbased on the affidavits of the adjoining owners, and on that basis, hecame to conclusion that the land is still in joint possession. 18.Considering the judgments in the case of Moh. Mehtab Khan andShyam Sel and Power Limited and Anr., and the well-settled principlesfor granting injunctions, this Court finds that the learned District Judgehas certainly committed an error by interfering with the order passed bythe learned trial Judge. There is no conclusion recorded as to how theview taken by the trial Court is not possible, or is perverse or illegal. Itwas necessary for the Appellate Court to consider this aspect. This Court,therefore, finds force in the argument of learned Advocate for thepetitioner that the learned District Judge erred in quashing and settingaside the well-reasoned order of the trial Court. Petition, therefore,deserves to be allowed. Hence, the following order: ORDER(i)Writ Petition stands allowed in terms of prayer
Decision
Ethape( 14 ) WP-15195-2023clause (B).(ii)In view of disposal of main writ petition, civilapplications do not survive and the same also disposedoff.(ii)So far as Contempt Petition No.631 of 2024 isconcerned, this Court finds that though it is brought tothe notice that there was a violation of an interim orderpassed by this Court, however, now the main petitionitself is disposed off. This Court finds that it would notbe proper to go into this aspect of contempt. Contemptpetition is also, therefore, disposed off. [KISHORE C. SANT, J.]