Dismissed

Saurabh Babasaheb Kale v. Dnyaneshwar Babasaheb Shelke

Bombay HC10 Jan 2023WP/3177/2022

Case brief

AI extract

What is this about?

The High Court of Bombay at Aurangabad dismissed a writ petition challenging the grant of a temporary injunction restraining the petitioner from obstructing the respondent's possession of agricultural land. The Court upheld the lower courts' findings that revenue records and the layout of adjacent allotments supported the respondent's prima facie entitlement to the suit property.

What the court decided

AI extract

Saurabh Babasaheb Kale Vs Dnyaneshwar Babasaheb Shelke — Property and Title | Bombay HC (2023)

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1 WP 3177.22.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 3177 OF 2022

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Saurabh Babasaheb Kale

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.. Petitioner

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Versus

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Dnyaneshwar Babasaheb Shelke

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.. Respondent

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Shri A. D. Sonkawade, Advocate h/f Shri Sandesh V. Hange, Advocate for the Petitioner. Shri Manoj A. Don, Advocate for the Respondent.

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CORAM : SHARMILA U. DESHMUKH, J. DATE : 10TH JANUARY, 2023.

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FINAL ORDER :

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. Petitioner is aggrieved by the concurrent findings recorded by the Trial Court and the Appellate Court, whereby the respondent’s application for temporary injunction came to be allowed restraining the petitioner from causing any obstruction or interference in the peaceful possession of the respondent over the agricultural land bearing gut No. 252/1 adm. 7H 66R, out of which 1H 10R suit land, which was specifically and particularly described with the four boundaries in paragraph No. 1 of the plaint.

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The facts of the case are that, the petitioner is original defendant in R.C.S. No. 09 of 2021, which came to be filed by the respondent seeking perpetual injunction from obstructing possession over suit property i. e. gut No. 252/1. By order of 12.06.1971, land bearing gut No. 252 was allotted to eight allottees by a specific order passed under provisions of the

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2 WP 3177.22.odt

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Maharashtra Agricultural Lands Ceiling on Holding Act, 1961 and accordingly mutation entry No. 1424 was effected. In the allotment order, the individual boundaries of the land of each of the allottees was not mentioned. Land Gut No. 252/1 was allotted to Limba Dagadu Shelke, Kundlik Rambha Sangle and Dhondi Gangaram Sangle. It is the case of the petitioner that on 21.08.2009 pursuant to permission granted by the Additional District Collector to Kundlik Rambha Shelke an area admeasuring 1H 10R was permitted to be transferred in favour of the petitioner’s father and consequently sale deed was executed on 24.08.2009 between Kundlik Rambha Sangle and the petitioner’s father. It is the petitioner’s case that on 16.06.2020, petitioner had applied to the Bank of Baroda for seeking loan for cultivation of petitioner’s agricultural land, which was disbursed.

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On 09^th September, 2021, the respondent who is legal representative of the one of the original allottee i. e. Limba Dagadu Sangle filed R.C.S. No. 09 of 2021 seeking perpetual injunction against the petitioner from obstructing the possession of the respondent of his agricultural land situated at gut No. 252/1 adm. 1H 10R. It is the case of the respondent in the plaint that the suit property was initially in possession of his forefathers and thereafter in possession of the respondent/plaintiff. In the month of February 2020, the respondent had planted sugar cane and thereafter the respondent’s father was admitted to the hospital and on 26.07.2020, the respondent’s father expired. As a reason of illness of his father and subsequent death, respondent could not visit his property and in the month of September 2020, when the

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3 WP 3177.22.odt

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respondent visited his property there was sugar cane crop standing on his land. Upon enquiry with the petitioner, the respondent was informed by the petitioner that since the respondent was not visiting his property, his crop was irrigated by the petitioner, which has now yielded sugar cane crop and as such said property belongs to the petitioner. In the month of September, 2021, the suit came to be filed. The description of the suit property has been stated in paragraph No. 1 of the plaint, which reads as under :

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1½ feGdrhps o.kZu & ftYgk vgenuxj lc fM usoklk iSdh ekSts dkSBk ;sFkhy tehu feGdr xV uacj 252@1 ;kps ,dq.k {ks= 7 gs- 66 vkj R;kiSdh oknh ;kaps ekydhps o rkC;krhy {ks= 1 gs- 10 vkj vls vlwu R;kpk vkdkj 2 : 90 iSls vlk vlwu R;klh prq%flek iq<hy izek.ks

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iqoZsyk lkSjHk ckcklkgsc dkGs if”pesyk fHkdk :atk cudj mRrjsyk jLrk o ckcklkgsc fijrkph dkGs nf{k.ksyk ukuklkgsc uoukFk dkGs o ds”kjckbZ ckthjko dkGs ;kaph feGdr

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A rough sketch of the property was annexed to the plaint. From the sketch annexed to the plaint, it appears that the property of the petitioner is to the East of the respondent’s property. In the written statement, the petitioner has set out the manner in which an area of 1H 10R out of land gut No. 252/1 was purchased by the petitioner’s father from the original allottee i.e. Kundlik Rambha Sangle. It is further the case of the petitioner in the written statement that in the said property he has installed a bore well, which is recorded vide mutation entry No.

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4913 and the petitioner and his father have made substantial improvement on the said property and on 10^th December, 2019, the petitioner had planted sugar cane crop, in respect which noting was made with Mula Sahkari Sakhar Karkhana Ltd and it is claim of the petitioner that till date said property is in possession of the petitioner. It is to be noted that in para No. 16 of the written statement it is admitted by the petitioner that the predecessor of the respondent i. e. Limba Dagadu Shelke was one of the allottee of 2Acres 28 Guntha in gut No. 252 and that at the time of the allotment the boundaries were not fixed. The Petitioner then goes on to deny the possession of the Limba Dagadu Shelke and states that despite the mutation entry No. 2414 recording name of Limba Dagadu Shelke , he was never in possession of the property adm. 2 Acres 28 Guntha of gut No. 252. To prove his possession over the suit property, the Petitioner has come with a case that one of the subsequent transferees of gut No. 252/1, Changdev Narayan Dahatonde and the petitioner had filed suit for fixation of boundaries in which a compromise was arrived at. The Petitioner has denied the description of suit property and the sketch.

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An application came to be filed U/O XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908 below Exhibit 05 in the suit R.C.S. No. 09 of 2021, which came to be allowed vide order dated 27.01.2021, against which the petitioner preferred a Misc. Civil Appeal No. 04 of 2021, which came to be dismissed vide order dated 26^th March, 2021 by the Appellate Court.

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Heard Shri A.D. Sonkawade, learned counsel for the Petitioner and Shri Manoj A. Don, learned Counsel for

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Respondent.

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Shri A.D. Sonkawade, submits that the allotment letter did not specify any boundaries and as such the description of the suit property in the plaint is not supported by any documentary evidence. He would further submit that in such case of boundary dispute it was necessary to appoint a Court Commissioner prior to grant of temporary injunction. He would urge that the findings of the Trial Court as well as Appellate Court are perverse as the findings are based only on the basis of revenue record, which cannot be presumed to confer any title in the property. He has assailed the findings on the ground of non appreciation by the Trial Court and the Appellate Court of the factual position that the sugarcane crop has been recorded by the Petitioner with Mula Sahakari Sakhar Karkhana Ltd. and that substantial funds were expended by the petitioner towards irrigating the suit land. He would urge that the Trial Court and Appellate Court has failed to consider the documentary evidence produced by the Petitioner. Learned counsel would further submit that, in the event this Court is not inclined to interfere with the impugned orders, the trial of the suit may be expedited.

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Per contra, Shri Manoj A Don, has supported the impugned orders. Learned counsel for the respondent would submit that the respondent has produced on record 7/12 extract and other revenue record of the property and it is not in dispute that the petitioner’s forefathers had been allotted the land in the said gut No. 252/1 and that fact has been recorded vide the mutation entry No. 1424. He would further submit that it is only by reason of his absence from the suit property in the month of

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February 2020, that the petitioner sought to take advantage and obstructed the possession of the respondent. He would further urge that the petitioner is seeking to take advantage of the fact that the lands of the petitioner and respondent are adjacent to each other and that the land of the petitioner as set out in the sketch is situated towards Eastern side of the property of the petitioner and the petitioner is intending to remove the common band of two lands and to take possession of the property.

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9. I have considered rival submissions of the parties.

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The respondent has come with case in the suit that pursuant to the order of allotment in favour of his grandfather Limba Dagadu Shelke, the suit property is in continuous possession of the predecessor of the respondent and thereafter the respondent. In paragraph No. 1 of the plaint, he has also described the suit properties and has stated that the property of the petitioner is on the Eastern side of the suit property and has also annexed a sketch depicting the location of the property. It is not in dispute that the gut No. 252 was allotted to different parties without mentioning the boundaries of individual allotments and both the respondent and the petitioner have right in Gut No 252. Mutation entry No. 1424, shows the name of the grandfather of the respondent namely Limba Dagadu Shelke as the owner to the extent of 2H 28R. A perusal of the mutation entry shows that it is registered at Sr. No. 278 and the name of the respondent is also subsequently been entered into 7/12 extract vide mutation entry No. 5110 in the occupancy column pertaining to the area of the suit property. Considering the revenue record, which has been produced by the respondent, it

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cannot be said that the predecessor of the respondent i. e. Limba Dagadu Shelke although having been allotted land in gut No. 252 had never been in possession of the land, which was a specific contention has been taken by the respondent in the written statement in paragraph No. 16 of the written statement to deny the possession of the Respondent. The petitioner is seeking to oppose the interim relief of injunction on the ground that the crop of sugar cane standing in the suit property was harvested by the petitioner and the crop was also recorded with the Mula Sahkari Sakhar Karkhana Ltd.

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Pertinently, the land which was allotted to the vendors of the Petitioner’s father is recorded at register No. 279, which is subsequent to the land allotted to the predecessor of the respondent which is at Sr. No. 278 and, therefore, it appears that lands of the petitioner and the vendor of the respondent were adjacent to each other, which is also reflected in the sketch annexed to the plaint and as such at this stage, the sketch produced by the respondent cannot be doubted. Perusal of the registered sale deed executed by the vendor of the petitioner with the petitioner’s father shows that towards the Western side of the purchased property there was remaining land of gut No. 252/1 and as such it can be assumed that the land of the respondent is situated to the Western side of the land of the petitioner, which also lends credence to the description of the suit property in the plaint as well as the map which is annexed to the plaint. The claim of the Petitioner that the Respondent is not in possession of any part of the property appears to be doubtful. By completely denying the possession of the Respondent over any part of Gat No 252, despite the entry and revenue records, doubt

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is created about the case put forth by the Petitioner. The position appearing from the revenue records is that the predecessors of the Respondents were allottees of Gat No 252 and to resist the claim of the Respondent, the Petitioner ought to have demonstrated the position of land occupied by the Respondent, however, the Petitioner has denied the possession of any land by the Respondent in the Gat No 252.

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Prima facie it appears that Petitioners after being in possession of its own part of the allotted land is now seeking to take possession of the adjacent land belonging to the Respondent. The admitted position being that the Respondent’s forefathers were allotted land in Gat No 252 and the Petitioner is a subsequent transferee in respect of land in Gat No 252 through another allottee. As such the Petitioner cannot claim possession over his land as well as the Respondent’s land. The Trial Court on the basis of the material produced on record has come to a prima facie finding that the suit property is situated towards the Western side of the land of the petitioner, which is sought to be encroached upon by the petitioner and that the balance of convenience is in favour of the petitioner, which findings have been upheld by the Appellate Court. Merely because the sugar cane crop cultivated on the suit land is not recorded in the name of the Respondent cannot be a ground to assume that the petitioner is in possession of the suit property. In exercise of powers of judicial review over the discretionary powers exercised by the Trial Court and the Appellate Court, the scope is very limited and unless the discretion exercised by the Trial Court and the Appellate Court is shown to be arbitrary and perverse, no interference is warranted. In the present case the Petitioner

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has not been demonstrate any case of perversity of findings.

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For the reasons stated above, I am not inclined to interfere with the impugned orders. So far as request of the learned counsel for the petitioner for expeditious hearing of the suit is concerned, the suit is of the year 2021 and, therefore, I am not inclined to consider the request of the petitioner for expeditious hearing of the suit.

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Writ petition is devoid of merits and same is accordingly dismissed. There shall be no order as to costs.

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bsb/Jan. 23

Saurabh Babasaheb Kale v. Dnyaneshwar Babasaheb Shelke

Case brief

What is this about?

What the court decided

Saurabh Babasaheb Kale v. Dnyaneshwar Babasaheb Shelke

Case brief

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