1 WP 8584.............2011 - [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 8584 OF 2011 1. Shivdas S/o Namdeo Pokale Age : 65 Yrs., Occ. Agril., R/o : Chandegaon, Tq. & Dist. Beed. 2. Ramesh S/o Shivdas Pokale Age : Major, Occ. Agril., R/o : Chandegaon, Tq. & Dist. Beed. 3. Ramdas S/o Shivdas Pokale Age : Major, Occ. Agril., R/o : Chandegaon, Tq. & Dist. Beed. 4. Ganesh S/o Shivdas Pokale Age : Major, Occ. Agril., R/o : Chandegaon, Tq. & Dist. Beed. .... PETITIONERS V E R S U S 1. Ganpatrao S/o Vishwanath Shinde Age : 64 Yrs., Occ. Agril., R/o : Chandegaon, Tq. & Dist. Beed. 2. Mohanlal S/o Pannalal Khatod Age : Major, Occ. Agril., R/o : Chandegaon, Tq. & Dist. Beed. .... RESPONDENTS 2 WP 8584.............2011 - [ J ] Mr. V.D.Salunke, Advocate for the Petitioners. Mr. S.S.Choudhari, Advocate for Resp. No. 1. WITH WRIT PETITION NO. 8604 OF 2011 Shivdas S/o Namdeo Pokale Age : 65 Yrs., Occ. Agril., R/o : Chandegaon, Tq. & Dist. Beed. .... PETITIONER V E R S U S 1. Ganpat S/o Vishwanath Shinde Age : 65 Yrs., Occ. Agril., R/o : Chandegaon, Tq. & Dist. Beed. 2. Kashinath S/o Vishwanath Shinde Age : 48 Yrs., Occ. Agril., R/o : Chandegaon, Tq. & Dist. Beed. 3. Yuvraj S/o Vishwanath Shinde Age : 60 Yrs., Occ. Agril., R/o : Chandegaon, Tq. & Dist. Beed. 4. Anant S/o Yuvraj Shinde Age : 25 Yrs., Occ. Agril., R/o : Chandegaon, Tq. & Dist. Beed. .... RESPONDENTS 3 WP 8584.............2011 - [ J ] Mr. V.D.Salunke, Advocate for the Petitioners. Mr. S.S.Choudhari, Advocate for Resp. No. 1. CORAM : S.V.GANGAPURWALA, J. DATE OF JUDGMENT : 17/11/2011. ORAL JUDGMENT : 1. Mr. S.S. Choudhari, the learned counsel submits that he has instructions to appear for all the respondents. In light of that, the present Writ Petitions are heard finally at the stage of admission. 2. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, taken up for final hearing. 3. The petitioner has filed R.C.S. No. 97 of 2010 for injunction. Along with the said Suit, has filed an application for temporary injunction. 4. The present respondents have filed R.C.S. No. 70 of 2010. Along with the said Suit, they have also filed an application for temporary injunction. The suit property in both the Suits is same. The trial Court rejected the temporary injunction application of the petitioner as well as the respondents in their respective Suits. Aggrieved thereby the present 4 WP 8584.............2011 - [ J ] petitioner preferred Misc. Civil Appeal No. 19 of 2010 and present respondents preferred Misc. Civil Appeal No. 22 of 2010. 5. The District Court allowed Misc. Civil Appeal No. 22 of 2010 and dismissed Misc. Civil Appeal No. 19 of 2010 preferred by the present petitioner. Aggrieved thereby the plaintiff in R.C.S. No. 97 of 2010 haw filed the present Writ Petitions. 6. Mr. V.D.Salunke, the learned counsel for the petitioner submits that the District Court has not taken into consideration the pleadings, the documents on record and the pleadings in the earlier Suit R.C.S. No. 247 of 2004 filed by the present respondents. The District Court only on the basis of the concept of juridical possession and the fact that till 1994-95 the names of the present respondents were appearing in the revenue record, has allowed the temporary injunction applications of the present respondents. The District Court has not considered the fact that even the father of the present petitioners was a tenant of the suit property along with the father of the respondents. The record to that effect was very much before the Court, but the same has been ignored. The learned counsel further contends that in the earlier Suit i.e. R.C.S. No. 247 of 2004 filed by the present respondents, the respondents who were plaintiffs therein have clearly admitted that they are not in possession of 5 WP 8584.............2011 - [ J ] the said tenanted property. The said admission has also not been considered by the District Court. The said admission at this prima facie stage should have been relied and accepted. The same was relied by the trial Court. When the Judgment of the trial Court was being reversed, it was duty of the appellate Court to come within close quarters of the reasonings of the trial Court. According to the learned counsel, the petitioner has purchased the suit property by registered sale deed from its original owner. G.No. 41 was admeasuring 8 H. 3 R. The same was divided amongst four ( 4 ) brothers. The petitioner in 2004 had purchased share of three ( 3 ) brothers. At that time also the Suit was filed bearing R.C.S. No. 247 of 2004, in which the admissions were made by the respondents that they are not in possession. The share of only one brother had remained, the same was also purchased vide registered sale deed on 01/12/2009 and again now a fresh Suit is filed by the respondents. According to the learned counsel, the Judgment of the Court below can not be sustained. 7. Mr. S.S. Choudhari, the learned counsel for the respondents submits that the said alleged admissions referred by the petitioner in R.C.S. No. 247 of 2004 can not be relied at this stage as the said alleged admissions are not proved. The said pleadings can not be considered at this stage unless an opportunity is given to explain the same. The learned 6 WP 8584.............2011 - [ J ] counsel further contends that it is not the case of the petitioner in the pleadings that they were the tenants. The present respondents had come with the specific case about the tenancy, which was supported by the 7/12 extracts. The respondents are the declared tenant and the same has been confirmed by the M.R.T. The presumption is in favour of possession i.e. continuity of possession. There are no overt act on record to show that the possession was at any time taken from the respondents by the petitioners. The learned counsel further contends that the District Court has properly considered all the aspects and has rightly come to the conclusion that the present respondents are in possession and has rightly clamped injunction against the petitioners. 8. With the assistance of the learned counsel, I have gone through the Judgments. 9. From the record, as is discussed by the trial Court, it transpires that the present respondents had earlier filed R.C.S.No. 247 of 2004 for injunction. The trial Court has discussed about the admissions given by the present respondents in the said Plaint regarding they not being in possession. From the perusal of the Judgment of the District Court, it is manifest that the relevancy of R.C.S. No. 247 of 2004, its pleadings and its effect has not at all been considered. There is no 7 WP 8584.............2011 - [ J ] discussion about the same in the whole Judgment. It also nowhere transpires that the District Court has considered the old record, which according to the parties, is placed. 10. It is trite that the District Court has to be loath in interfering with the discretion exercised by the trial Court. When it is upsetting the order of the trial Court, the appellate Court has to come within the close quarters of the reasonings given by the trial Court. When an Appeal under Order XLIII of the Code of Civil Procedure [ For short, ‘ the Code ’ ] is being decided, all the provisions of Order XLI of the Code apply mutatis – mutandis to the said Appeal also. 11. As the District Court has not considered all the documents on record, has not discussed the efficacies of the said documents and the pleadings of the earlier Suit on record, the impugned Judgment can not be sustained. 12. In such circumstances, it would be in fitness of things to set aside the Judgment delivered by the District Court and relegate the parties to the District Court for deciding the Appeal afresh after giving opportunity to both the parties to make submissions on all the relevant documents. 8 WP 8584.............2011 - [ J ] 13. In the result, I pass the following order : The impugned orders passed by the District Court in Misc. Civil Appeal No. 19 of 2010 and Misc. Civil Appeal No. 22 of 2010 are quashed and set aside. The parties are relegated to the District Court. The District Court shall after giving opportunity of hearing to the parties and considering all the documents filed on record, shall decide Misc. Civil Appeal No. 19 of 2010 and Misc. Civil Appeal No. 22 of 2010 afresh. The parties shall appear before the District Court on 05/12/2011. In view of that, no separate notice is necessary. The District Court shall thereafter decide the Appeal expeditiously. 14. Rule is made absolute in above terms. No costs. [ S.V. GANGAPURWALA,J. ] KNP/WP 8584.............2011 - [ J ]