High Court
Legal Reasoning
IN THE JUDICATURE OF HIGH COURT AT BOMBAYBENCH AT AURANGABAD933 WRIT PETITION NO. 15566 OF 20231.Balu, Babu @ Rajesh s/o Keshavrao Survase,2.Kailas s/o Keshavrao Survase,3.Manohar @ Venkati s/o Keshavrao Survase,4.Girjabai w/o Keshavrao Survase,5.Keshav s/o Tukaram Survase...PetitionersVERSUS1.Ravindra s/o Govindrao Dhavale,2.Vithalrao s/o Rangrao Deshmukh...Respondents...Advocate for the Petitioner : Mr. Khande Avinash A.Advocate for Respondents No.1 and 2 : Mr. S. S. Deshmukh i/bMr. S. S. Jangada...CORAM : R. M. JOSHI, J.Dated : June 12, 2024PER COURT :-1.Heard. By consent of both sides, petition is heard finally at thestage of admission.2.This petition takes exception to the interim order passed by theTrial Court in Special Civil Suit No.14/2022 below Exhibit 5 and 23,and confirmation of the said order by the learned District Court inMisc. Civil Appeal No.93/2023.3.The respondents are the plaintiffs in Special Civil SuitNo.14/2022. They filed suit for injunction against the defendantsrestraining them from causing interference in their possession inPage 1 of 7 2933 WP 15566-2023respect of the suit property which was purchased by them pursuantto registered sale deed dated 04/06/2010. During the pendency ofthe suit an application came to be filed below Exhibit 13 seekingrestraining order against the defendants i.e. petitioners herein fromcreating third party interest in the suit land till disposal of applicationExhibit 5 on the basis of the fact that the revenue record stands inthe name of defendants.4.Defendants appeared and opposed application Exhibit 5 andalso filed application Exhibit 23 seeking reliefs againstrespondents/plaintiffs. By passing impugned order, the learned TrialCourt rejected the application Exhibit 23 and allowed Exhibit 5. Bythis order defendants No.1 to 5 were restrained from transferringthe suit property in any manner whatsoever. Similarly, they wererestrained from obstructing the possession of the plaintiff over thesuit property.5.Learned Counsel for petitioners submits that both the Courtsbelow have committed serious error in rejecting application Exhibit23 and allowing Exhibit 5 filed by the plaintiffs. It is his contentionthat without any justification, both Courts were influenced with thePage 2 of 7 3933 WP 15566-2023fact that in Regular Civil suit No.85/2012 the sisters of father ofdefendant No.1 had challenged the sale deed in question and thesaid suit was dismissed. It is his further submission that if theplaintiffs had purchased the suit property in the year 2010, then itdoes not stand any reason as to why no action was taken formutation of the revenue record in their name. It is his furthersubmission that suit has been filed in order to create a ground totake possession of the suit property. He claims that the suitproperty is in possession of the defendants. By drawing attention ofthe Court to order dated 18/01/2022, passed below Exhibit 13, it iscontended that even thereafter no effective steps were taken by therespondents/ plaintiffs for pressing the application Exhibit 5. It is hissubmission that under the guise of the impugned order, plaintiffs arelikely to take possession of the suit property. Alternatively, hesubmitted that as the petitioners/defendants are restrained fromcreating any third party interest in the suit property, in similarmanner, the plaintiffs also be restrained.6.Learned Counsel for respondents/ plaintiffs supported theimpugned orders.Page 3 of 7 4933 WP 15566-20237.At the outset, it needs to be recorded that this Court is dealingwith the writ petition challenging the interim relief granted by theTrial Court which is confirmed by the District Court. Needless to saythat unless this Court finds perversity in the said findings, therewould be no propriety to cause any interference therein. The factsof the case as they appear from the prima facie perusal of the recordindicates that in the year 2010 sale deed was executed in respect ofthe suit property by the erstwhile owner in favour of plaintiffs.There is no dispute made with regard to the execution of aregistered sale deed in this regard. It is pertinent to note that in theyear 2012 Regular Civil Suit No.85/2012 came to be filed byPrayagbai and Gopal against present respondents/ plaintiffs andKailash and Venkati. Though it is sought to be contended thatKailash and Venkati were minor at the relevant time, the copy ofJudgment in Regular Civil Suit No.85/2012 indicate that they wereduly represented by their father as a guardian. Thus, it is clear fromthe record that the petitioners had knowledge in respect of theRegular Civil Suit No.85/2012. Needless to say that therespondents/ plaintiffs were joined as a party to the suit only for thePage 4 of 7 5933 WP 15566-2023reason that the suit properties were sold to them. In suchcircumstances, it was incumbent on the part of Kailash and Venkatito challenge the sale deed executed in favour of the plaintiff and alsoto state specifically that the possession of the suit properties stillremain with them. Nothing is done in this regard by them.8.The contention of the petitioners about denying the factum ofthe possession of the suit land with plaintiffs rests on the fact, thatno attempts were made by the plaintiffs to mutate the suitproperties in their name. In this regard, it is pertinent to note thatthe said aspect has been duly considered by the learned Trial Courtwith observation that the suit filed in the year 2012 came to bedecided on 27/01/2017, which the Court found to be adequateexplanation for not taking steps to mutate the suit property in theirname. This Court find no reason or justification to interfere into thesaid findings recorded by the learned Trial Court and confirmed bythe District Court.9.It needs to be recorded that the title of the suit property hasbeen said to be transferred in the name of plaintiffs on the basis of aregistered sale deed. Perusal of the said document on record, primaPage 5 of 7 6933 WP 15566-2023facie indicates that the same is supported by consideration withspecific recital about the suit property being given into thepossession of the plaintiffs. In view of this fact coupled with theconspicuous silence of Kailash and Venkati in Regular Civil SuitNo.85/2012 claiming possession of the suit property, this Court findsno reason or justification to accept the contention of the Counsel forthe petitioners that the petitioners are in possession of the suitproperty and the plaintiffs are likely to take disadvantage of theinterim orders.10.Though it is sought to be canvassed before this Court thatthere be order of some injunction against the plaintiffs restrainingthem from creating third party interest in the suit property. In thisregard, it is pertinent to note that there is no prayer made in Exhibit23 to that effect. This Court cannot pass any order while exercisingwrit jurisdiction in respect of the matter which was never agitatedbefore the Trial Court. Hence, the request stands rejected. Petitionis dismissed with the above observations.11.Learned Counsel for the petitioners submits that thepetitioners wishes to challenge this order before the Hon’blePage 6 of 7
Legal Reasoning
7933 WP 15566-2023Supreme Court, and hence, he seeks continuation of order dated20/12/2023 for a period of six weeks.12.Learned Counsel for the respondents opposes the said request.13.Since the order is in force for last about six months, this Courtfind it appropriate to extend the same for further four weeks. Hence,order dated 20/12/2023 to remain in force for four weeks.( R. M. JOSHI, J. )vj gawade/-.Page 7 of 7