Allowed

Swapnil S/O Ishwar Jarlle v. Suresh S/O Jaikrishna Patil

Bombay HC3 Apr 2024WP/386/2024

Case brief

AI extract

What is this about?

Suit for cancellation of sale deed and injunction; trial court and appellate court rejected plaintiff's application Exh.5 seeking injunction against disturbance of possession. Relying on Tahsildar's orders based on Talathi's report showing plaintiff's possession, the High Court quashed both orders and allowed Exh.5.

What the court decided

AI extract

Swapnil S/O Ishwar Jarlle vs Suresh S/O Jaikrishna Patil — Property and Title | Bombay HC (2024)

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2024:BHC-NAG:5181

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Judgment

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94.wp.386.24 JUDG.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR

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WRIT PETITION NO.386 OF 2024

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Swapnil S/o Ishwar Jarlle, Aged about 31 years, Occ. Agriculturist,

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All R/o Dhamangaon, Tah. Samudrapur, Dist. Wardha, Original Plaintiffs ...Petitioner

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// VERSUS //

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Suresh s/o Jaikrishna Patil, Aged about 59 years, Occ. Service, R/o G-102, Classic Pawan Apartment, Hingna Rd, Nagpur, Tah. & District- Nagpur. Original ... Respondent Defendant.

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______________________________________________________________ Mrs. Smita P. Deshpande, Advocate for Petitioner. Shri S.J. Patil, Respondent in person.

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CORAM : ANIL S. KILOR, J. DATED : 29th APRIL , 2024

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ORAL JUDGMENT

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Heard.

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RULE . Rule is made returnable forthwith. Heard finally by consent of the parties.

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In a suit filed by the petitioner/plaintiff for cancellation of registration of sale deed and for permanent injunction, the application Exh.5 was moved seeking injunction against the defendant to restrain

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him from disturbing the possession of the plaintiff over the suit land.

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Judgment

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94.wp.386.24 JUDG.odt

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It is the case of the plaintiff that, the sale deed dated 20.12.2011 executed in favour of the defendant by the plaintiff is towards security and out of money lending transaction. It is, therefore, submitted that, though the sale deed was executed, the plaintiff never handed over the possession of the suit property to the defendant.

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The learned trial Court rejected the application Exh.5 vide order dated 29.04.2023 which was subject matter of challenge before the learned lower appellate Court in Misc. Civil Appeal No.03 of 2023. The learned lower appellate Court confirmed the order of the learned trial Court and dismissed the appeal. Hence, this petition.

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I have heard Mrs. Deshpande, learned counsel for the petitioner and respondent in person.

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The learned counsel for the plaintiff/petitioner has drawn attention of this Court to the orders passed by the Tahsildar dated 14.10.2021 and 11.01.2023 on the applications moved by the petitioner to enter his name in the 7/12 extract in the column of possession.

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Both the orders supports the case of the petitioner as regards his possession over the suit property.

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The respondent is not disputing the fact of passing of said orders and that, he has not challenged the orders though the orders are against him and he was party to the said proceeding.

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Judgment

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94.wp.386.24 JUDG.odt

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It is apparent from the face of both the orders that, the finding recorded as regards the possession of the petitioner over the suit property is based on the report of the Talathi, Dhamangaon. Thus, to arrive at a conclusion that, the petitioner is in possession of the suit land there is report of the Talathi, a Revenue Officer and therefore, I am of the opinion that, both the Courts below have committed error in holding that, the petitioner failed to prove his possession over the land in question. In the circumstances, I pass the following order :

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i) The writ petition is allowed . ii) The order dated 29.04.2023 passed below Exh. 5 by the Jt. Civil Judge Junior Division, Samudrapur in Regular Civil Suit No.34 of 2020 and the judgment and order dated 05.10.2023 passed by the District Judge-1, Hinganghat, Dist. Wardha in Misc. Civil Appeal No.03 of 2023, are hereby quashed and set aside and consequently, Exh.5 is allowed .

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Rule is made absolute in above terms. No costs.

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( ANIL S. KILOR, J )

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C.L.Dhakate

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Signed by: Mr. C.L. Dhakate Designation: PA To Honourable Judge Date: 02/05/2024 14:52:25

Swapnil S/O Ishwar Jarlle v. Suresh S/O Jaikrishna Patil

Case brief

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What the court decided

Swapnil S/O Ishwar Jarlle v. Suresh S/O Jaikrishna Patil

Case brief

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