1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4438 OF 2008 Pandurang Mahadeo Patil. ..Petitioner. V/s. Daulatrao Shankar Patil. ..Respondent. Mr.P.M.Arjunwadkar for Petitioner. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : JANUARY 17, 2009. DATE : JANUARY 17, 2009. DATE : JANUARY 17, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the Petitioner. 2. I see no basis to interfere with the discretionary order passed by the Appellate Court at this interlocutory stage. In my opinion, the Appellate Court has rightly proceeded on the finding that the Respondent/Plaintiff’s case is that he had undivided share in the property, which is reinforced from the entry in the 7/12 extract. The 7/12 extract for the period 2001-2002 mentions the name of the Respondent/Plaintiff in the ownership column to the extent of Ana 3 Paise 8 share. This finding is supported by the contemporaneous record and cannot be assailed at this stage. It is not the case of the 2 Petitioner/Defendant that the brother of the Respondent/Plaintiff was the sole and exclusive owner of the suit property. The Defendant has asserted that the Plaintiff’s brother has conveyed the suit property by a registered sale deed executed on 21st July, 2006, pursuant to which the Defendant has been put in possession of the suit property. The argument deserves to be stated to be rejected on more than one count. 3. In the first place, there is nothing on record to indicate that the brother of the Plaintiff was sole and exclusive owner of the suit plot. If the Respondent/Plaintiff had undivided share in the said plot, he could not be dispossessed by the Petitioner on the basis of registered sale deed in absence of any agreement to the contrary. The Petitioner in that sense is a stranger to the property, not being the member of the Hindu undivided family, of which the Respondent/Plaintiff is stated to be a member. Thus understood, the fact that there is a registered sale deed in favour of the Petitioner executed by the brother of the Plaintiff in relation to the suit property will make no difference in law or in fact. On the other hand, the documentary evidence on record as adverted to by the Appellate 3 Court clearly reinforces the position that althroughout the Respondent/Plaintiff has been shown as owner in possession of the Gat No.301. Indeed, the Petitioner had also asserted that the Petitioner has already purchased the share of the Respondent/Plaintiff in terms of oral agreement dated 26th October, 1992. However, no evidence has been produced to substantiate this position. 4. Besides, the Appellate Court has found that the Petitioner has not produced the affidavit of any neighbouring land owner to support his stand that he was actually cultivating the suit land on and from 1992 and in any case from 2006 after execution of registered sale deed. This being the factual position, the finding of fact recorded by the Appellate Court at this interlocutory stage that there is no tittle of evidence in favour of the Petitioner/Defendant to show that he was in fact possession of the suit property, is in my opinion, unassailable. On that finding, the inevitable consequence is to protect the possession of the Respondent/Plaintiff in relation to the suit property, in which, he would have undivided share, as sole and exclusive owner thereof. In the circumstances, no interference is warranted in 4 exercise of writ jurisdiction. Dismissed. 5. At this stage, Counsel for the Petitioner submits that the Court may clarify that the trial Court will decide the suit on its own merit, uninfluenced by the observations made in the impugned Judgment or for that matter present order. There is no difficulty in accepting this request. Further request is made by the Counsel for the Petitioner that hearing of the suit be expedited. It is not possible to accept that request the Petitioner however, will be free to apply to the trial Court for that relief, which will be considered on its own merit. Ordered accordingly. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)