Bombay High Court
Sk. Amin Sk. Ismail vs Ambadas S/O Pundlik Fuke on 5 February, 2018
Author: Z.A. Haq
Bench: Z.A. Haq
Judgment 1 wp6357.2017.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 6357/2017
PETITIONER : Sk. Amin Sk. Ismail,
Aged about 61 years,
Occu. Agriculturist,
R/o Savad, Tq. Risod,
Distt. Washim
...V E R S U S...
RESPONDENT : Ambadas S/o Pundlik Fuke,
Aged about 36 years,
Occu. Labour/Driver,
R/o Dhangar Galli Road,
Tq. Risod, Distt. Washim
===================================
Shri R.L. Khapre, Advocate for the petitioner
Shri V.B. Gawali, Advocate for the respondent
===================================
CORAM:- Z.A. HAQ,J.
th
DATED :- 5 FEBRUARY, 2018
ORAL JUDGMENT :-
Heard.
Rule. Rule made returnable forthwith.
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Judgment 2 wp6357.2017.odt 2] The petitioner (original defendant) has challenged the
order passed by the Subordinate Courts upholding the claim of the respondent-plaintiff for temporary injunction restraining the defendant from interfering with possession of the plaintiff over the suit land.
3] The plaintiff has filed the civil suit, initially praying for decree for permanent injunction restraining the defendant from interfering with possession of the plaintiff over the suit field. The defendant filed written statement and claimed that he is in possession of the suit field on the basis of sale-deed dated 29/01/1993 executed by the mother of the plaintiff. It is undisputed that the sale-deed dated 29/01/1993 was executed by the mother of the plaintiff when the plaintiff was minor. After receiving the written statement of the defendant, the plaintiff amended the civil suit and sought decree for declaration that the sale-deed dated 29/01/1993 is null and void.
4] In the civil suit, the plaintiff filed an application (Exh. 5) praying for temporary injunction restraining the ::: Uploaded on - 15/03/2018 ::: Downloaded on - 21/05/2018 03:40:22 ::: Judgment 3 wp6357.2017.odt defendant from interfering with possession of the plaintiff over the suit field. This application was allowed by the trial Court by order dated 18/08/2011. The order passed by the trial Court was challenged by the defendant before the District Court in appeal which is dismissed by the order dated 05/07/2017. The defendant being aggrieved in the matter has filed this writ petition. 5] The plaintiff and the defendant both relied on the documentary evidence to substantiate their claim that they are in possession of the suit filed. At the time of filing of the civil suit, name of the defendant was not mutated in the revenue records on the basis of sale-deed dated 29/01/1993 however, subsequently name of the defendant is mutated in the revenue records and this order of mutation was challenged by the plaintiff in appeal which came to be allowed and according to the defendant the order passed by the appellate authority is further challenged and the matter is subjudiced. Both the parties have relied on the entries in the 7/12 extract to substantiate their claim of possession over the suit field. The Subordinate Courts have relied on the entries in the 7/12 extract showing the name of the plaintiff and has upheld the claim of the plaintiff for grant of ::: Uploaded on - 15/03/2018 ::: Downloaded on - 21/05/2018 03:40:22 ::: Judgment 4 wp6357.2017.odt temporary injunction. On going through the documents placed on record, I find that the documentary evidence placed by both the parties on record are conflicting and are not sufficient to determine as to who is in possession of the suit field. 6] In the facts of the case, established principles that possession follows title will have to be followed and as the defendant claims to be in possession of the suit property on the basis of the sale-deed executed by mother of the plaintiff on 29/01/1993, at this stage the claim of the defendant that he is in possession of the suit field will have to be accepted.
It is relevant to state that father of the plaintiff had entered into the agreement of sale of the suit field and before he could execute the sale-deed, he died and mother of the plaintiff executed the sale-deed of the suit field when the plaintiff was minor. The agreement of sale contains recital that the defendant was put in possession of the suit field at the time of execution of the agreement of sale. The learned advocate for the plaintiff has submitted that the agreement of sale with the recital that the defendant is put in possession of the suit field is not registered and therefore does not have any evidentiary value. The learned ::: Uploaded on - 15/03/2018 ::: Downloaded on - 21/05/2018 03:40:22 ::: Judgment 5 wp6357.2017.odt advocate for the defendant has submitted that at the time of execution of the agreement of sale, it was not required to be registered. Be that as it may, even if registration of agreement of sale was required and was not registered, it can be used for collateral purpose at this stage to ascertain as to whether the defendant was put in possession of the suit field. 7] This writ petition was listed on 04/10/2017 and this Court directed issuance of notice to the respondent, and an ad- interim order was passed restraining the defendant from harvesting crops standing in the suit field without prior permission of this Court. The defendant contends that he had already harvested soyabean crops before passing of order on 04/10/2017 and the crops are sold within the market yard of Agricultural Produce Market Committee, Risod. The plaintiff relies on a document to show that amount of Rs. 15,145.70/- is deposited in his account on 11/10/2017 towards sale price of soyabean. Had this receipt been of a date prior of 04/10/2017, it would have been relevant for deciding the issue of possession however, as the receipt is after a week of passing of interim order by this Court, the same cannot be accepted at this stage to uphold the claim of ::: Uploaded on - 15/03/2018 ::: Downloaded on - 21/05/2018 03:40:22 ::: Judgment 6 wp6357.2017.odt the plaintiff.
8] In the facts of the case, I find that the Subordinate Courts have committed an error by allowing the application (Exh. 5) and upholding the claim of the plaintiff for grant of temporary injunction restraining the defendant from interfering with possession of the plaintiff over the suit field, overlooking the fact that the defendant claims to be the owner of the suit field as per the sale-deed dated 29/01/1993 executed by the mother of the plaintiff when plaintiff was minor. It is further not in dispute that the mother of the plaintiff would be entitled for 1/3 rd share in the suit field and she has not challenged the sale-deed executed by her in favour of the defendant.
9] In the facts of the case, the following order is passed:-
O R D E R 1] The impugned orders are set aside.
2] The application (Exh. 5) filed by the plaintiff before the trial Court is dismissed. ::: Uploaded on - 15/03/2018 ::: Downloaded on - 21/05/2018 03:40:22 :::
Judgment 7 wp6357.2017.odt
3] The plaintiff shall deposit
Rs. 15,145.70/- before the trial Court. The disbursement of this amount shall be by the trial Court at the time of disposal of the civil suit. Till then, this amount shall be kept in fixed deposit in Nationalised Bank.
4] Civil Application No. 170/2018 filed by the petitioner-defendant seeking permission to harvest the crops standing on the suit field is allowed and Civil Application No. 169/2018 filed by the respondent-defendant seeking permission to harvest the crops standing on the suit field is dismissed.
The writ petition is allowed in the above terms. In the circumstances, the parties to bear their own costs. ::: Uploaded on - 15/03/2018 ::: Downloaded on - 21/05/2018 03:40:22 :::
Judgment 8 wp6357.2017.odt As the civil suit is of 2010, and is at the stage of recording of evidence, the trial Court is directed to dispose the civil suit till 05/05/2018.
JUDGE Ansari ::: Uploaded on - 15/03/2018 ::: Downloaded on - 21/05/2018 03:40:22 :::