Dismissed

The Chairman, Namdar Shri. Vashwantraoji Chavan Sahakari Audyogik Vasahat Maryadit Murgud v. Shri. Dasharath Rama Pawali and Ors.

Bombay HC27 Jul 2012WP/1937/2012

Case brief

AI extract

What is this about?

This petition challenged an appellate order granting temporary injunction to original plaintiffs against a cooperative society. The High Court observed that the injunction was correctly granted dismissing the writ of certiorari.

What did the court decide?

Writ petition dismissed as no case made out under Article 227 of the Constitution of India.

The Chairman, Namdar Shri. Vashwantraoji Chavan Sahakari… — Property and Title | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1937 of 2012

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The Chairman, Namdar Shri Yashwantraoji Chavan Sahakari Audyogik Vasahat Maryadit : Petitioner

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versus

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Mr. Dashrath Rama Pawali & Ors.

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: Respondents

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Mr. A.V.Anturkar with Mr. Sugandh B. Deshmukh for the Petitioners Mr. S.S.Patwardhan for the Respondent Nos.1 to 4

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CORAM:- R M SAVANT, J DATED :- JULY 27, 2012.

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P.C.

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1 The above Petition takes exception to the order dated 23-1-2012 passed by the Learned District Judge, Kolhapur, by which order, the Appeal filed by the Respondents herein i.e. the original Plaintiffs came to be allowed and resultantly the temporary injunction which was rejected by the Trial Court came to be granted by the Lower Appellate Court.

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2 The Respondents are the original Plaintiffs who have filed the suit in question for injunction in respect of the land bearing Gat No.593 area admeasuring 5H and 30Ars. The said injunction sought is on the account of Sale Deed dated 13-9-1993, allegedly executed by their father, on the basis

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of which the Defendant No.1 in the suit i.e the Petitioner herein lays a claim to the property in question. It is the case of the Respondents that the MMJ 1/5

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said Sale Deed is bogus and that their father Rama Pawale who has alleged to have executed the said Sale Deed never executed the same and in fact his thumb impression was forged. The prayers sought in the said suit revolve around the said case of the Plaintiffs. The Plaintiffs have also sought injunction that the Defendant No.1 be restrained from creating third party interest in respect of the suit property. In the said suit the Plaintiffs filed an application for temporary injunction which application was opposed by the Defendant No.1. The Defendant No.1 inter alia relied upon the said Sale Deed dated 13-9-1993, the NA order dated 3-2-1996 which was passed in respect of the land in question and Mutation Entries which were effected in favour of the Defendant No.1. Whereas the Plaintiffs relied upon the receipts issued by the sugar factories to which sugar cane grown on the land in question was supplied, in support of their case for injunction pending the suit. The Trial Court on the basis of the material on record and especially on the basis of the Sale Deed as well as the other documents namely the NA order as well as the Mutation Entries recorded in favour of the Defendant No.1, reached a conclusion that it is the Defendant No.1 who is in possession of the property in question and who is seeking to utilise it for the purposes of carving out industrial plots for its members. The Trial Court therefore by its order dated 15-10-2010

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rejected the application for temporary injunction filed by the Plaintiffs.

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3 The Plaintiffs aggrieved by the refusal of the Trial Court to exercise discretion in their favour, filed Misc Civil Appeal No.197 of 2010. The Lower Appellate Court on a re-appreciation of the material on record reached a conclusion that the Trial Court has misdirected itself by not exercising discretion in favour of the Plaintiffs. The Lower Appellate Court was of the view that the material on record placed by the Plaintiffs was not considered by the Trial Court in its proper perspective. The Lower Appellate Court has cast a serious suspicion on the aspect of the execution of the Sale Deed by the father of the Plaintiffs, Rama Pawale. The circumstances for arriving at the said finding are mentioned in the impugned order. The said circumstances are firstly that the original of the said Sale Deed was not produced in the Court and secondly though the Sale Deed was executed in the year 1993, the name of the Co-operative Society was entered in the revenue record only in the year 1998. The Lower Appellate Court has also taken into consideration the fact that the NA order dated 3-2-1996 does not refer to the said Sale Deed dated 13-91993 and that the Defendant No.1 had not produced any material to show that in fact the amount of Rs.5,30,000/- which was the consideration paid to the said Rama Pawale. The Lower Appellate Court therefore found it fit

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to upset the order passed by the Trial Court in refusing to grant injunction to the Plaintiffs and has in turn granted the said injunction.

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4 During the course of the hearing of the above Petition, the Learned Counsel Mr. Anturkar appearing for the Petitioners sought to reiterate the case of the Defendant No.1 in the courts below by relying upon the documents which are on record to demonstrate that the Defendant No.1 has acquired a valid title to the property and is in possession. The Learned Counsel for the Petitioner contends that the Sale Deed in question was also executed after obtaining the permission of the concerned authority of the State Government. However, as held by the Lower Appellate Court on the basis of the receipts issued by the sugar factories, the said receipts unequivocally point out the possession of the Plaintiffs of the suit property. It is further required to be noted that though the Sale Deed refers to the permission granted by the office of the Collector on 7-9-1993 for execution of the said Sale Deed on the Plaintiffs approaching the said authority, the said authority has informed the Plaintiffs that there is no record with the office of the Collector of having granted any such permission for execution of the Sale Deed. This is one more circumstance which dents the case of the Defendant No.1 that the Sale Deed executed in

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its favour is unquestionable and that it is in possession of the property.

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MMJ

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Though much store was laid by the Learned Counsel for the Petitioner on the revenue entries which were initially made in favour of the Chairman of the society in the year 1993 and thereafter in the name of the society itself. The said revenue entries in my view do not further the case of the Defendant No.1 in any manner, as in the cultivation column the name of the Plaintiffs appear, which is indicative of their possession. In the aforesaid conspectus of facts, in my view the Lower Appellate Court was right in exercising the discretion in favour of the Plaintiffs by upsetting the order of the Trial Court rejecting their application for temporary injunction. Therefore, no case for interdiction in the Writ Jurisdiction of this Court under Article 227 of the Constitution of India is made out. The Writ Petition is accordingly dismissed.

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5 However, in view of the fact that the Petitioner is a Co-operative Industrial Society and is seeking to establish an industrial area, the hearing of the suit is expedited.

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6 Needless to state that the observations made herein above are on a

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prima facie view and the Trial Court would undoubtedly try the said suit on its own merits and in accordance with law.

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(R M SAVANT, J)

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MMJ

The Chairman, Namdar Shri. Vashwantraoji Chavan Sahakari Audyogik Vasahat Maryadit Murgud v. Shri. Dasharath Rama Pawali and Ors.

Case brief

What is this about?

What did the court decide?

The Chairman, Namdar Shri. Vashwantraoji Chavan Sahakari Audyogik Vasahat Maryadit Murgud v. Shri. Dasharath Rama Pawali and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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