Dismissed

Shri. Sheedhar Mahadu Mukadam and Ors. v. Shri. Shivram Sitaram Mukadam

Bombay HC19 Mar 2013WP/6797/2012

Case brief

AI extract

What is this about?

Dismissing writ petitions challenging a review order that restored a temporary injunction against the petitioner. The court held that the High Court found no case for interference as the review exercise was justified due to excluded evidence not part of the appeal paper book.

What did the court decide?

Both writ petitions were dismissed and the challenged review order stands upheld.

Shri. Sheedhar Mahadu Mukadam and Ors. Vs Shri. Shivram… — Property and Title | Bombay HC (2013)

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wp-6797.12&9541.12

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6797 OF 2012 WITH WRIT PETITION NO.9541 OF 2012

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Shreedhar Mahadu Mukadam and ors. : Petitioners. Versus Shivram Sitaram Mukadam : Respondent.

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Mr. Amol S Sonwane for the Petitioners. Mr. S M Oak with Mr. Sagar Joshi for the Respondent.

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CORAM : R. M. SAVANT, J. DATE : 19^th March 2013

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P.C.

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1 In so far as Writ Petition No.6797 of 2012 is concerned, the same takes exception to the order dated 16/4/2012 passed by the learned Adhoc District Judge-2 Thane by which order the Appeal filed by the Plaintiffs i.e. the Petitioners herein came to be partly allowed and resultantly the order passed by the learned Civil Judge, Junior Division, Bhiwandi, on Exhibit 17 i.e. the application filed by the Defendant for injunction came to be set aside.

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2 In so far as Writ Petition No.9541 of 2012 is concerned, the same takes exception to the order dated 22/06/2012 passed in Review being Civil Misc. Application No.168 of 2012 by which order the order dated 16/4/2012 in Misc. Civil Appeal No.165 of 2010 came to be reviewed and consequently the order passed on Exhibit 17 by the Trial Court came to be restored.

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3 The suit in question has been filed by the Plaintiffs for the relief of simplicitor injunction against the Defendant restraining him from causing obstruction to the possession of the Plaintiffs in respect of the suit property. In the said suit, the Plaintiffs filed an application for temporary injunction which was numbered as Exhibit 5. The Defendant in the said suit filed his counter claim claiming title by adverse possession and also filed an application Exhibit 17 for seeking temporary injunction against the Plaintiffs.

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It is not necessary to dilate on the pleadings of the parties at length. Suffice it to say that the application Exhibit 5 filed by the Plaintiffs came to be rejected whereas the application Exhibit 17 filed by the Defendant came to be allowed by the Trial Court. The Trial Court relied upon the entry in the cultivation column which was made in favour of the Defendant. It is required to be noted that before the Trial Court the Plaintiffs filed affidavits of two persons viz. Khandu Mukadam and Dunda Mukadam whereas the Defendant filed affidavits of Sadanand Mukadam and Eknath Mukadam. The Trial Court on a consideration of the said material on record, which included the entry made in the cultivation column, allowed the application Exhibit 17 filed by the Defendant, however, rejected the application Exhibit 5 filed by the Plaintiffs.

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4 The Plaintiffs aggrieved by the order passed by the Trial Court carried the matter in Appeal. The Lower Appellate Court on a re-appreciation of the material on record reached a conclusion that neither the Plaintiffs nor the Defendant have proved by placing material on record that either of them were in possession of the suit property. The Lower Appellate Court therefore by its order dated 16/4/2012 partly allowed the Appeal filed by the Plaintiffs being Misc. Civil Appeal No.165 of 2010 to the extent of setting aside the order passed on the application Exhibit 17, i.e. the injunction, which was in favour of the Defendant. In the context of the present Petitions what is required to be noted is that though the affidavits of Sadanand Mukadam and Eknath Mukadam who are admittedly the adjoining land owners of the suit property were placed on record in the Trial Court, the Lower Appellate Court had not adverted to the said affidavits but had only adverted to the affidavits filed on behalf of the Plaintiffs i.e. the affidavits of Khandu Mukadam and Dunda Mukadam. The Lower Appellate Court did not countenance the said affidavits filed by the Plaintiffs on the ground that the Plaintiffs have failed to prove that they are the adjoining land owners of the suit property.

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5 After the Lower Appellate Court partly allowed the Appeal, the Defendant being aggrieved by setting aside of the order granting temporary injunction by the Lower Appellate Court, sought Review of the said order dated 16/4/2012 passed in MCA No.165 of 2010. The review sought was on the

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ground that the affidavits of Sadanand Mukadam and Eknath Mukadam though on record have not been taken into consideration by the Lower Appellate Court. The Lower Appellate Court on the ground that though the affidavits of the said two persons were part of the record of the Trial Court, however, since the Plaintiffs did not file the affidavits by making them a part of the paper book in the Appeal thought it fit to exercise review jurisdiction as according to the Lower Appellate Court the Appeal having been decided in the absence of the two documents which were left to be considered on account of the fact that they were not part of the paper book, allowed the review application, and resultantly set aside the order passed on Exhibit 17 on the ground that by the said affidavits the possession of the Defendant has been proved inasmuch as it has been stated in the said affidavits that the Defendant is in possession and has been cultivating the suit property since last many years. The Lower Appellate Court thereafter by the order dated 22/08/2012 which is under challenge in the Companion Writ Petition No.9541 of 2012 has allowed the review application an set aside the order dated 16/4/2012 in so far as the application Exhibit 17 is concerned.

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6 The learned counsel appearing on behalf of the Petitioners in the above Petitions would contend that if the Lower Appellate Court was of the view that the order required to be reviewed, the Lower Appellate Court ought to have set aside the order and ought to have re-considered the Appeal being

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MCA 165 of 2010 de novo. The learned counsel relying upon the averments made in the counter claim, would contend that the Defendant has accepted that the Plaintiffs are in possession of the property.

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7 In my view, it is not possible to accept the contention of the learned counsel for the Petitioners. There is no dispute about the fact that though the affidavits were filed in the Trial Court, they were not made part of the paper book filed in the Lower Appellate Court. The Lower Appellate Court therefore could not take into consideration the said affidavits and decide the matter. The affidavits being a relevant piece of evidence at the prima facie stage, the Lower Appellate Court was right in reviewing the order on the ground that the material piece of evidence could not be considered in view of the fact that it was not made part of the Appeal paper book. Hence in so far as exercise of review jurisdiction is concerned, there can be no fault found with the same.

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8 Since the said affidavits are a clinching evidence in favour of the Defendant in so far as the aspect of possession is concerned, as earlier the Lower Appellate Court by its order dated 16/4/2012 had held that both the Plaintiffs and Defendant have failed to prove their possession, there was no warrant for the Lower Appellate Court to remand the matter back for de novo consideration of the Appeal. It is on the basis of the material on record and

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especially the two affidavits that a finding of fact as regards possession has been recorded by the Lower Appellate Court in favour of the Defendant.

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9 Having heard the learned counsel for the parties and have perused the impugned orders, in my view, no case for interdiction in the writ jurisdiction of this Court is made out. The above Writ Petitions are accordingly dismissed. Needless to say that the observations made in the instant order are on a prima facie view and the suit in question would be tried on its own merits and in accordance with law.

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[R.M.SAVANT, J]

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Shri. Sheedhar Mahadu Mukadam and Ors. v. Shri. Shivram Sitaram Mukadam

Case brief

What is this about?

What did the court decide?

Shri. Sheedhar Mahadu Mukadam and Ors. v. Shri. Shivram Sitaram Mukadam

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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