Writ petition challenging interim order in Regular Civil Suit 132/2017. Court examined possession via revenue records and lease deed, holding no basis to interfere under Article 227 as lower courts correctly found respondent in settled possession.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3408 OF 2023
Bhanudas Laxman Bhosle ….. Petitioner Vs. Mustafa Nijam Mulani and Ors. ….. Respondents
Mr. B. K. Raje for the Petitioner.
Mr. R. M. Momin i/b Tooba R. Momin for Respondent Nos.1 and 2.
CORAM : SHARMILA U. DESHMUKH, J.
DATE : 17 AUGUST 2023.
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1989 be declared as illegal, null and void and for order of perpetual injunction restraining the petitioners from interfering with the possession of the defendant. Respondent has come with a case that lease deed was in fact a security document which has been executed of a sum of Rs.1 lakh which was advanced by the petitioner's father to respondent. It is pleaded that within 2 years thereafter amount has been repaid and as the document was only for the purpose of security, the possession was never parted with. It is further the case that the suit property is being cultivated by respondent and in that respect their names have been mutated in the revenue records. The trial Court as well as the appellate Court on the basis of revenue record have come to a prima facie finding that the possession of the suit property is with the petitioner and has allowed application below Exhibit 5.
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years. He would further contend that the cause of action arose when the amount was repaid within a period of 2 years as claimed and/or thereafter when the petitioner's father expired. Petitioner's father expired in the year 2010 and suit has been filed in the year 2017.
respondent submits that the aspect of possession has been rightly decided in favour of the respondent considering the mutation entries which have come on record. He would further submit that the question of limitation is a mixed question of fact and law and will be considered at the time of trial.
with the assistance of learned counsel for the parties.
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application for temporary injunction what is required to be seen is whether any prima facie case is made by the petitioners and whether the balance of convenience is in favour of the petitioner. In that context the documentary evidence produced by the petitioner will have to be considered. The petitioner seeks to rely on the lease deed of the year 1989 to contend that while executing the lease deed for a period of 99 years the possession of the suit property was handed over to the father of the petitioner. In that respect as the property was handed over in the year 1989 to the father of the petitioner the least expected is to mutate their names in the revenue records. Since the year 1989 till the year 2017 the property is stated to be in possession of the petitioners. The claim of the petitioners is of longstanding possession since the year 1989, however, there is no document produced on record apart from the lease deed to demonstrate the de-facto possession of the petitioner. On the other hand, there is 7/12 extract which shows a noting of "Masjid". No doubt the contention of the petitioner is that apart from noting that there is nothing to show that when the entry was mutated. In my opinion the same will be a matter of trial as to how the entry was mutated. However the revenue records do not show the name of
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the petitioner as leasehold owner of the suit property. As regards the application which has been filed with the Tahsildar, the position as on date of application before the trial Court was that the matter was remanded to Talathi. Insofar the invoices as regards the purchase of seeds the same cannot be said to assist the case of the petitioner to prove his longstanding possession. The trial Court as well as the appellate Court has considered the mutation entry which has come on record and has inferred that prima facie 7/12 extract reflect that the defendants are in possession of the suit property. In cases where there is no other document, possession usually follows title, however in the present case 7/12 extract which is produced on record prima facie show noting of Masjid and as such defendants are shown to be prima facie in possession.
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process of law. In the present case, trial Court as well as the appellate Court on the basis of revenue entries has come to a concurrent findings as regards the respondents being in settled possession.
SHARMILA U. DESHMUKH, J.
2 issues framed by the court
Whether this Court can interfere with the interim order of lower courts under Article 227 read with settled principles of possession in a suit for declaration of voidness of lease deed.
Whether the claim of long standing possession can be disregarded by revenue records showing defendant tenancy.
2 provisions across 2 enactments
Bhanudas Laxman Bhosle
Mustafa Nijam Mulani and Ors.
SHARMILA U. DESHMUKH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
