1 wp359.11 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 359 OF 2011 1. Mata Sab Gurudwara, Mugat, Through, Premsing Babaji Chela Baba Santsingh S/o. Gurugobindsingh, Age: 66 years, Occ: Chief Priest, R/o. Matasab Devaji Mugat, Tq. Mudkhed, Dist. Nanded. 2. Gulabsingh S/o Puransingh Sardar, Age: 30 years, Occ: Agril., R/o. Asarjan, Tq. & Dist. Nanded. ..PETITIONERS -VERSUS- Shivanand S/o Ganeshrao Nilawar, Age: 39 years, Occ: Agril., R/o. HUDCO, New Nanded, Tq. & Dist. Nanded. ..RESPONDENT WITH WRIT PETITION NO. 360 OF 2011 1. Sou. Rukhminibai w/o Digambar Labhshetwar, Age: 65 years, Occ: Household, R/o. Sindi, Tq. Umri, Dist. Nanded. 2. Shivshankar S/o Dattatraya Polawar, Age: 45 years, Occ: Agri., R/o. Amdura Tq. Mudhkhed, Dist. Nanded. 3. Narayan s/o Dattatraya Polawar, Age: 39 years, Occ: Agri., R/o. Amdura Tq. Mudhkhed, Dist. Nanded. 2 wp359.11 4. Smt. Sumanbai w/o Ganeshrao Nilawar, Age: 72 years, Occ: Agri., R/o. HADCO, New Nanded. 5. Sou. Kusumbai w/o Vithalrao Damkondwar, Age: 62 years, Occ: Household, R/o. Gokulnagar, Nanded. 6. Sou. Tarabai w/o Gajanan Kotgire, Age: 52 years, Occ: Household, R/o. Sarafa, Nanded. 7. Smt. Vinutai Rameshrao Kotgire, Age: 49 years, Occ: Household, R/o. Malkautha, Tq. Mudkhed, Dist. Nanded. (Petitioner Nos.1,2,5,6 & 7 are given General Power of Attorney in the name of Petitioner No.3.) ..PETITIONERS -VERSUS- Shivanand S/o Ganeshrao Nilawar, Age: 39 years, Occ: Agril., R/o. HUDCO, New Nanded, Tq. & Dist. Nanded. ..RESPONDENT ..... Mr. Gajanan S. Shembole, Advocate for petitioners. Mr. M.V. Deshpande, Advocate holding for Mr. M.V. Ghatge, Advocate for respondent sole. ..... (CORAM : B.P. DHARMADHIKARI, J.) DATED : 20th January, 2011. PER COURT : In Writ Petition No.359 of 2011 original plaintiffs are 3 wp359.11 petitioners. Trial Court granted their prayer for temporary injunction and that was questioned by present respondent by filing Misc. Civil Appeal No.102 of 2010. District Judge-1 has by impugned judgment dated 22-12-2010 allowed that appeal. That order is challenged by plaintiffs in this Writ Petition. 2. In Writ Petition NO. 360 of 2011 order passed by District Judge-1 Nanded in Misc. Civil Appeal No.99 of 2010 is of very same date, protecting possession of respondent, is questioned. Suit has been filed by present respondent and his application for grant of temporary injunction came to be rejected. Therefore, he approached the appellate Court and appellate Court has allowed that application for temporary injunction. 3. As both orders are passed by same Court in appeal and in relation to same suit property, reasons given therein are identical. 4. Advocate Mr. Gajanan Shembole appearing for petitioners, has contended that appellate Court has given undue importance to earlier developments in R.C.S. No.439 of 2003. According to him, though temporary injunction was given to present respondent in that matter, it was upheld by this Court in 4 wp359.11 Writ Petition, ultimately suit was dismissed in default and hence, that injunction ceases to operate. Petitioners purchased property in 2010 and are in possession since then. He has invited attention to order passed by Tahasildar recording cultivation by petitioners to urge that order is determinative at this stage. 5. Mr. Murar Deshpande, learned Counsel appearing for respondent in both matters, has supported impugned orders. He states that earlier prima facie appreciation of controversy by Courts is relevant even in new suits and he wants to rely upon the revenue record to show that in 2010 possession of said respondent for past five years has been confirmed. 6. Looking to the nature of dispute, it is apparent that revenue record and mutation entries cannot be treated as basis at this stage. Hence, both Counsel were asked to point out any other document about actual cultivation either by petitioners or by respondent. No such document showing actual cultivation is filed. This Court, therefore, has to consider controversy in the light of material looked into by Courts below in their orders. 7. It cannot be disputed that in appeal under Order 43 Rule - 1 of the Code of Civil Procedure, consideration of 5 wp359.11 controversy by the appellate Court is very narrow. Appellate Court has relied upon earlier orders passed in R.C.S. No. 439 of 2003 and then non filing of revenue record by petitioners till 23-09-2010 to show that they were holding separate and independent possession of suit property. It has been found that petitioners were claiming to be placed in possession on 13-04-2010 i.e. date of execution of agreement. It has noted that, that agreement itself shows that delivery of possession would be after receipt of balance of sale consideration. It has further found that on 13-04-2010 no possession was delivered to petitioners. The alleged receipt of delivery of possession produced on record and executed by alleged heirs of deceased Gyanoba (vendor of petitioners) is found to be not bearing any date of delivery of possession. 8. I therefore, find that appellate Court has looked into material made available to it and has taken a possible view thereof. It also noticed how trial Court has fallen into error. In this jurisdiction, at this stage, it is not possible for this Court to hold that said view is either perverse or then approach is without jurisdiction. I am, therefore, not inclined to interfere with the matter. 9. However, considering the fact that earlier also a suit was filed by present respondent and it was dismissed in default 6 wp359.11 and again a second suit has been filed by him and counter suit has been filed by present petitioners, proceedings in R.C.S. No. 211 of 2010 on the file of Civil Judge, Junior Division, Nanded and Proceedings in R.C.S. No.221 of 2010 on the file of Joint Civil Judge, Junior Division, Nanded are expedited. Court is directed to decide same as early as possible, and in any case, within period of one year from the date of communication of this order to it. 10. It has been brought to notice that both suits are pending before different Courts. Principal District Judge, Nanded is directed to transfer both suits to any one Court for their expeditious disposal, in accordance with law. 11. With these directions and observations, both Writ Petitions are disposed of accordingly. No order as to costs. (B.P. DHARMADHIKARI) JUDGE sut/Jan11/wp359.11