A.O.No.185 of 2011 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPEAL FROM ORDER NO.185 OF 2011 WITH CIVIL APPLICATION NO.12800 OF 2011 Syed Salim s/o Syed Mustafa Zhagirdar ..Appellant (Orig.Plaintiff) Versus Syed Mohsin s/o Syed Mustafa Zhagirdar and ors. ..Respondents Mr V.J.Dixit, Senior Counsel holding for Mr V.T.Sakolkar, Advocate for appellant Mr P.M.Shah, Senior Counsel holding for Mr Satish S.Deshmukh, Advocate for respondent Nos.1, 2 and 4 Mr S.S.Deshmukh, Advocate for respondent No.3 CORAM : K.U. CHANDIWAL, J. DATE : 23rd November 2011 PER COURT Heard learned Senior Counsel for the respective parties. 2. Rejection of Exh.5 by order dated 28.9.2011 by learned District Judge, Udgir in Regular Civil Appeal No.13/2011 is questioned by the plaintiff/appellant. Parties are referred by their original status as plaintiff and defendants. 3. Regular Civil Suit No.475/2002 was filed by plaintiff. By elaborate judgment dated 24.1.2011 he faced dismissal. Exh.5 therein was also dismissed. It was challenged by way of M.C.A.No.18/2002 wherein certain directions were issued to the plaintiff to make remittance. It is a matter of fact, such directions of remittance are not adhered by the A.O.No.185 of 2011 2 plaintiff in Suit No.475 of 2002. 4. The appellate Court at the stage of Exh.5, indeed revealed to the history of litigation coupled with all the document and reached to the prima facie finding as no case for grant of injunction in favour of the plaintiff. 5. In the Appeal from Order, it was expected of the plaintiff to show perversity in the order. Reading the judgment in R.C.S.No.475/2002 or the order questioned, prima facie, I do not see any perversity to castigate the order to entertain Appeal from Order or to formulate the substantial question of law. 6. The plaintiff asserts right to the saw mill based on the sale deed dated 17.6.1988, which indeed does not refer to any immovable property barring the articles. Record illustrates, at such time the plaintiff was unemployed, he had no resources. The amounts for purchase of such saw mill was debited from the bank account of the father. The relevant entries to this effect are established before the competent forum. The business activities was conducted jointly by plaintiff and other brothers. It is curious, for a period of three years in between the saw mill was leased to one Ramchandra. Said agreement executed by father of the plaintiff is also signed by the plaintiff and his other brothers, accepting status of his A.O.No.185 of 2011 3 father to be owner of the property, as well the saw mill. 7. On 11.9.1997, Syed Mustafa, the father executed sale deed of the land being Gram Panchayat No.1291 in favour of defendant No.4. This transaction is not objected to at any stage by the plaintiff. 7. The learned Senior Counsel for the plaintiff has, during the course of submission placed a licence to erect/operate machinery or saw mill being registered No.13/2011 showing the Plot/Survey No.12/1 in the name and style as “Sadat Saw Mill, Udgir” with the four boundaries referred therein. The licence is valid from 1st January 2011 to 31st December 2011. 8. The learned Senior Counsel appearing for the defendants submits that licence or the case of Survey No.12/1 is projected for the first time, divorced from record. 9. I find substance at the prima facie stage of the matter that there was no identity of the property, as now tried to be asserted The concur of the situation illustrates that the land, wherein the saw mill existed is forming part of the Grampanchayat No.1291. The independent witness examined by the plaintiff in Regular Civil Suit even did not support plaintiff’s contention of exclusive user of the saw mill. A.O.No.185 of 2011 4 8. The learned District Judge has also recorded about conduct of the plaintiff in not adhering to the directions of payment, as the plaintiff has initially deposited Rs.536/- for the period from 8.11.2003 to 7.12.2003. Thereafter, he has deposited Rs.7,854/- for the year 2006-2007, then Rs. 28,954/- for the period 2007-2010. However, he did not deposit any amount for the period from 2004-2006. Thus, he has not complied the order passed in M.C.A.No.18/2002. These events flow from record and projects the demeanor of the plaintiff in dealing with the matter. He failed to regard and honour orders of the Court. At this stage, rejection of Exh.5 questioned does not call for any interference. 9. Appeal from Order dismissed. Civil Application for injunction disposed of. Observations of this Court as well the learned District Judge are prima facie in nature, should not be weighed while deciding the pending Regular Civil Appeal. Learned Additional District Judge to consider, if urged, for expeditious hearing of the appeal. ( K.U. CHANDIWAL, J. ) (vvr/185.2011ao)