-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.6952 of 2007 Sopan Namdeo Salgar ..Petitioner vs. 1. Rama Namdeo Salgar and others ..Respondents Shri A.A.Joshi for petitioner. CORAM: S.C.DHARMADHIARI J. CORAM: S.C.DHARMADHIARI J. CORAM: S.C.DHARMADHIARI J. 7th December, 2008 7th December, 2008 7th December, 2008 P.C. P.C. P.C. 1. This writ petition is directed agaist the order of the lower Appellate Court reversing the order of the Trial Court refusing interim injunction to the respondents/original plaintiffs. 2. The respondents/original plaintiffs instituted Reg.Civil Suit No. 102 of 2005 in the Court of Joint Civil Judge, Jr.Dn., Mohol seeking permanent injunction restraining the present petitioner/original defendant from in any manner disturbing the possession of the plaintiffs in respect of the suit property more particularly described in para 1 of the plaint. 3. The case was that the original plaintiffs -2- have a brother Vasudeo and the original plaintiffs and the said Vasudeo inherited the suit properties. The plaintiffs are real brothers of the said Vasudeo whereas the present petitioner is the step brother of Vasudeo. 4. The case set up is that Vasudeo has renounced the world. He has not been heard of from 1990 till about 1995 when he came and expressed his intention in writing that the suit properties must be exclusively held by the original plaintiffs. It is undisputed that originally there was a partition and revenue entry no.1380 dated 27th March, 1989 has been relied upon. In the plaint itself the case is that the respective parties to this partition have been put in exclusive possession of their share and they are cultivating the land. There are entries to that effect from the said date in 7/12 extract. 5. Reliance is placed upon the writing/Will dated 20th July, 1995 and it is contended that pursuant thereto the plaintiffs have been put in possession of the properties by Vasudeo whereas no rights of the nature claimed by the present petitioner are conferred upon him. Yet, public -3- notice was issued so also attempt to obstruct possession resulted in filing of the suit. 6. The application for interim injunction preferred by the respondents was contested by the present petitioner and the Trial Court has given a finding of fact by holding as under: "9. Perused the documents on record. It is admitted position that the partition between the parties and Vasudeo has been effected through the Tahsildar in the year 1989. It is pertinent to note that in the reply notice dated 12.8.2005 issued by the plaintiffs it has stated that since partition in the year 1989 respective parties are enjoying respective properties as a owner. It is important to note that the plaintiffs have no where stated in the said notice that plaintiff no.1 is in exclusive possession of the suit properties since 1989. Thus, the pleading of the plaintiffs that plaintiff no.1 is in exclusive possession of the suit properties is not reliable one. The -4- plaintiffs have filed affidavits of several persons which are at Exh.26 to 29. The deponents have stated that plaintiff no.1 is enjoying suit properties since 13 to 14 years. In this context plaintiff no. 1 is enjoying the suit properties since 1992 however it is case of the plaintiffs that plaintiff no.1 is enjoying the suit properties since 1989. Thus, there is inconsistency between the pleading and the statement in the affidavits Exh.26 to 29. Therefore, it is not safe to rely on the affidavits filed by the plaintiffs. 10. It is pertinent to note that the plaintiffs have filed copy of Will deed dated 20.7.1995. The recitals of the Will deed are very material. It has stated in the Will deed that, since the partition in the year 1989 every body is enjoying respective properties allotted to them by partition. It has specifically stated in the Will deed that the suit properties are in possession of Vasudeo Salgar and the -5- suit properties are to be given to plaintiff no.1 after death of Vasudeo Salgar. It has nowhere stated that the suit properties are in possession of plaintiff no.1. Had the suit properties been in possession of plaintiff no.1, naturally Vasudeo would have stated that the possession of suit properties will be confirmed after death of Vasudeo. However, it is not stated so. Thus, it becomes crystal clear that plaintiff no.1 is not in exclusive possession of the suit properties. In the circumstances the affidavits filed by Tukaram Nana Gadade and Gangurbai Ranba Waghmode at Exh.25 and 42 respectively are of no use to the plaintiffs as the documents of will deed is itself clear on this fact and affidavits are run in counter to the recitals in the Will Deed." 7. Further the Trial Court held that the respondents are disentitled from claiming any discretionary and equitable relief as they have suppressed the fact that the petitioner has filed Reg.Civil Suit No.97 of 2005 which is for -6- declaration and partition. The present suit is counterblast to the said suit but the fact of institution of the suit by the petitioner is suppressed. In such circumstances, by order dated 14th September, 2006, the Trial Court refused interim injunction. 8. The respondents carried the matter in appeal and lower Appellate Court reversing the judgment of the Trial Court has held that the respondents have proved prima facie that they are in lawful possession of the property, balance of convenience is in their favour and they will suffer irreparable loss. 9. I have with the assistance of Shri Joshi perused the petition and annexures thereto including the plaint and impugned order. I did not have the benefit of any arguments being canvassed by the respondents as they are absent despite notice having been served upon them. This Court had issued notice before admission and made the matter returnable. Despite receipt of the notice none has appeared for the original plaintiffs. 10. Having perused the judgments and orders of -7- the Courts below, I am of the view that the lower Appellate Court has rendered inconsistent and contradictory findings at the prima facie stage. Initially it accepts the case of partition and also that the names of the parties to the said partition having been entered in the revenue records with regard to the portion of the land in their possession and cultivation. Reliance is placed upon these entries and finding is recorded that the plaintiffs, defendant and Vasudeo are in exclusive possession of the land. However, when the Will of Vasudeo was placed before it, the lower Appellate Court observed that unless and until it is presumed that Vasudeo is dead no reliance can be placed upon the document which is entitled as "Will". If that be the position, then, the lower Appellate Court ought to have concurred with the Trial Court and refused interim injunction. 11. However, perusal of the order of the lower Appellate Court reveals that it has recorded a prima facie finding that the original plaintiffs are in permissive possession of the suit property. For rendering such finding at a prima facie stage it has placed reliance upon the very -8- "will" which in its earlier view is not conclusive. Therefore, in absence of any recital in the Will with regard to the exclusive possession being handed over to the respondents by Vasudeo, there was no question of any interim injunction being granted in their favour. The Trial Court has observed that the affidavit of person who claimed to be adjoining cultivator is of no assistance. Once, the partition and revenue entry evidences exclusive possession of all the brothers, then, to my mind, there was no question of passing restraint order against the petitioner who is also a joint sharer and step brother of Vasudeo. There is no question of petitioner/defendant proving as to whether he is in possession of the property or not as it was the case of the respondents/plaintiffs that the petitioner is obstructing their exclusive possession. In such circumstances, to my mind, the observations of the lower Appellate Court are patently erroneous being contrary to the material placed on record and can safely be termed as perverse. 12. In this behalf, following observations of the lower Appellate Court need to be reproduced. -9- "...The question only remains that, actually who is in possession of the suit property. Admittedly, the ancestral property was already divided in four parts and Vasudeo one of the brother of plaintiffs and defendant already got his share i.e. suit property independently after effecting the partition. He used to enjoy the suit property independently and, therefore, in that circumstances, neither plaintiff, nor the defendant had any right of ownership and possession over the suit property. The suit property being exclusively owned by same Vasudeo Namdeo Salgar. Therefore, he was entitled to enjoy the same property, absolutely. It was his choice to whom the property should be bequeathed and therefore in that circumstances, relations between the plaintiffs and defendant with Vasudeo Namdeo Salgar to be taken into consideration. Vasudeo Namdeo Salgar was admittedly real brother of plaintiffs and step brother of defendant. Even the sake of argument for the time being, it is presumed that, -10- Vasudeo Namdeo Salgar renounced the world and left behind him the property of his share. Then in that circumstances, the intention of Vasudeo Namdeo Salgar would be to bequeath his property to his real brother i.e. plaintiffs and not to his step brother defendant. Certainly, he must have affinity, love and affection with his real brothers and not with the defendant. Therefore, naturally, while renouncing the world and becoming vagrant, he must have handed over possession of suit property to his real brothers i.e. plaintiffs and not to his step brother i.e. defendant. It is said that, "the blood is thicker than water. So considering the relations between the plaintiffs and Vasudeo Namdeo Salgar as real brothers and for the sake of argument presuming that, Vasudeo Namdeo Salgar is not in existence. In that circumstances, the preferential rights over his property will be of the plaintiffs being his real brothers. The defendant being his step brother, certainly will have no any -11- preferential right to hold his property by way of inheritance. In that circumstances, it is to be seen that, whether same Vasudeo Namdeo has handed over possession of the suit property to the plaintiffs." 13. To my mind, this is not satisfactory manner of dealing with the application for interim injunction. Shri Joshi’s criticism that the order of the lower Appellate Court is based upon conjectures and surmises has some substance. 14. The order under challenge is, therefore, vitiated by an error apparent on the face of record and requires interference in this Court’s jurisdiction under Article 227 of the Constitution of India. Writ petition, therefore, succeeds. The impugned order passed by the lower Appellate Court is quashed and set aside and that of the Trial Court is restored. However, there will be no order as to costs. The Trial Court to decide the suit uninfluenced by any observations of the lower Appellate Court so also of this Court and on the basis of the oral and documentary evidence placed before it. -12- (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)