Bajirao Laximan Pawar and Anr. Vs Dhananjay Rameshwar Gudve

¶1

wp4686.12

¶2

1

¶3

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶4

BENCH AT AURANGABAD.

¶5

WRIT PETITION NO.4686 OF 2012

¶6

Bajirao Laximan Pawar and anr. .. PETITIONERS.

¶7

VERSUS

¶8

Dhananjay Rameshwar Gudve .. RESPONDENTS.

¶9

Shri U.B. Deshmukh, Advocate h/f
Shri V.D. Salunke, Advocate for Petitioner/s.
Shri N.R. Thorat, Advocate for Respondent.

¶10

CORAM: S.S. SHINDE,J.

¶11

 18th April, 2013.

¶12

PER COURT:

¶13

1.This writ petition takes exception to the
order dated 14th March, 2012 passed by the
District Judge-1, Majalgaon in M.C.A. NO.
43/2011.

¶14

2.The petitioners are original defendants and
respondent herein is original plaintiff who
filed the suit for declaration and permanent

¶15

wp4686.12

¶16

2

¶17

injunction. In the said, application for
temporary injunction was filed below Exh.5,
which was rejected by the trial Court.
Aggrieved by the said order, Misc. Civil Appeal
was preferred before the District Court and the
same was allowed. Hence, this writ petition.

¶18

3.The learned Counsel for the petitioners
submits that the sale deed on which reliance has
been placed by the original plaintiff itself is
void. It is further submitted that there is
mutation entry taken in the name of the
plaintiff. The said entry has been challenged
before the Tahsildar and the Tahsildar has
granted stay to the same. It is submitted that
in absence of declaring the parents incompetent,
it is not permissible for the grandmother to
enter into the transaction on behalf of minor.
It is further submitted that the defendants are
in possession as stated by one of the witnesses,
namely Vijay Pawar before the trial Court.
Even, if is assumed that there is sale deed, it

¶19

wp4686.12

¶20

3

¶21

was only for the purpose of security towards
loan. Entire loan amount was paid with
interest. The learned Counsel invited my
attention to the findings recorded by the trial
Court and submitted that all the aspects have
been considered by the trial Court, balance of
convenience lies in favour of the petitioners -
original defendants and they are in possession
of the suit property. The plaintiff has utterly
failed to establish his title or prima facie
case and he is in possession of the suit
property. Therefore, the learned Counsel for
the petitioner submits that the petition may be
allowed.

¶22

4.On the other hand, learned Counsel for the
respondent submits that the petitioners have no
locus to challenge the impugned order. It is
submitted that the original plaintiff is in
possession of the suit property. At the time of
considering the prayer for temporary injunction,
three factors, as stated in Order XXXIX Rule 1

¶23

wp4686.12

¶24

4

¶25

and 2 of the Code of Civil Procedure, are
required to be considered. It is submitted that
the appellate Court found that the plaintiff is
in possession of the suit property. He invited
my attention to paragraphs 10 and 11 of the
judgment of the District Court and submitted
that the appellate Court has considered the sale
deed, the fact that by virtue of said sale deed,
the plaintiff was placed in possession of the
suit property and after noticing recital of the
sale deed, the appellate Court has passed the
order. It is submitted that already mutation
entry has been entered in the name of plaintiff,
and the plaintiff is in possession of the suit
property. The lower appellate Court is the last
Court on facts. Therefore, the learned Counsel
for respondent submits that this Court may not
interfere in the impugned judgment and order.

¶26

5.I have given careful consideration to the
rival submissions of the learned Counsel for the
parties. With the able assistance of the

¶27

wp4686.12

¶28

5

¶29

Counsel for the parties, perused entire material
on record. So far as the point raised by the
Counsel for the petitioners about validity of
the sale deed is concerned, it is the matter for
final adjudication in the suit. The contention
of the Counsel for the petitioners as to whether
the grandmother was competent to enter into
transaction is also a matter for trial before
the trial Court. It appears that even the trial
Court has noticed that 7/12 extracts do show
that the plaintiff is in possession. The trial
Court in paragraph 6 of the order has recorded
the arguments of the plaintiff that at Exh.4/2,
there is 7/12 extract and property is in the
name of the plaintiff.

¶30

6.Taking into consideration the overall facts
in the case and after perusal of paragraphs 10
and 11 of the judgment of the lower appellate
Court, it appears that the plaintiff has
established prima facie case for grant of relief
of temporary injunction. Though the learned

¶31

wp4686.12

¶32

6

¶33

Counsel for the petitioners contended that the
said sale transaction was for the purpose of
security towards loan, it appears that evidence
in rebuttal has not been led and said fact has
been observed by the lower appellate Court in
para 11 of the impugned judgment. Therefore, in
my opinion, balance of convenience certainly
lies in favour of the plaintiff since the lower
appellate Court, which is the last Court on
facts, has held that the plaintiff is in
possession of the suit property on the basis of
sale deed and 7/12 extract placed on record.
Therefore, since there are no perverse findings
recorded by the lower appellate Court, no
interference is called for in the impugned
judgment and order.

¶34

However, in my opinion, since the
controversy involved in the matter falls in a
narrow compass, the trial Court is directed to
expedite hearing of the R.C.S. No. 90/2011 and
disposed of the same, as expeditiously as

¶35

wp4686.12

¶36

possible, preferably within one year from today.
The trial Court shall not grant unnecessary
adjournments to the parties. With these
observations, writ petition stands rejected.

¶37

(S.S. SHINDE, J.)

¶38

PLK/*

Bajirao Laximan Pawar and Anr. v. Dhananjay Rameshwar Gudve

Case brief

What is this about?

What did the court decide?

Bajirao Laximan Pawar and Anr. v. Dhananjay Rameshwar Gudve

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Devidas S Vasave Vs Swadhin Shtriye and Anr.

Shital Ramanlal Bafna Vs Pushpabai Prakashchandra Surana

Shital Ramanlal Bafna Vs Pushpabai Prakashchandra Surana

The Sub Divisional Forest Officer and Anr. Vs Raghunath Haribhau Nairale and Ors.

Hausabai Fakira Kapkar Vs Babubai Nivrutti Ranmale and Ors.

Nilofar Sayeed Khan Vs Sayeed Khan Khader Khan