1 W.P. 9619.2011 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 9619 OF 2011 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders ................................ CORAM : S.V.GANGAPURWALA, J. DATE : 14/12/2011. Mr. Sachin.S.Deshmukh, Advocate for the petitioner. ..................... PER COURT : 1. The present respondents have filed Suit for injunction. Along with the Suit, the respondents also filed an application for temporary injunction. The said application is allowed. Aggrieved thereby, the petitioner filed Appeal before the District Court. The District Court dismissed the Appeal confirming the order of the trial Court. The defendants have assailed the said order in the present Writ Petition. 2. Mr. Deshmukh, the learned counsel for the petitioner vehemently contended that the declaration U/s 38­E of the Hyderabad Tenancy and Agricultural Lands Act [ For short, ‘ Tenancy Act ’ ] is issued in favour of the petitioner. The same 2 W.P. 9619.2011 is the conclusive proof of his rights and also the fact that he is in possession of the property. The learned counsel further contends that even in the 7/12 extract for the year 2010 – 2011, the name of the petitioner is mutated in the possession column. The learned counsel further contends that till the year 2007, there was no dispute between the parties and it is only when the present respondents purchased the property, the dispute arose. All these facts would substantiate that the petitioner is in possession of the property. Even the dispute regarding the mutation entries is pending before this Court and this Court has granted status­quo in respect of the said mutation entries. The Court at this prima facie stage could not have observed about the genuineness of the documents relied by the present petitioner. According to the learned counsel, there was nothing on record before the Court to observe that the documents produced by the petitioner regarding the receipt issued by the Irrigation department and the MSEDCL to be not a genuine one. The observations in that regard are perverse. The rights of the petitioner, who has a declaration in his favour U/s 38­E of the Tenancy Act by the competent authority, can not be dispeled at least at this prima facie stage. On the basis of the order of injunction, the respondents are trying to dispossess the petitioner. The suit land is the only source of livelihood of the petitioner. 3 W.P. 9619.2011 3. With the assistance of the learned counsel, I have gone through the Judgments and the documents placed on record. 4. Even if I ignore the observations made by the Courts below in respect of the documents, still this Court can not be oblivious of the fact that the present petitioner himself had instituted a Suit bearing R.C.S. No. 235 of 2007 seeking injunction against the present respondents from interfering with his possession. The said Suit was dismissed on merits. The present petitioner preferred Appeal before the District Court against the said Judgment and decree. The District Court also dismissed the Appeal. Aggrieved thereby the petitioner has filed Second Appeal before this Court, the same is pending but no interim orders are passed therein. The Court below has observed these facts. When after the long trial, the Court of competent jurisdiction has dismissed the Suit of the present petitioner seeking injunction against the present respondents and the trial Court holding that the present petitioner, who was the original plaintiff in the said Suit, could not prove his possession. At this prima facie stage, the said findings would be relevant. The said findings are also confirmed by the appellate Court. 5. In light of the above, no case for interference is made out in the writ jurisdiction of this Court under Article 227 of the 4 W.P. 9619.2011 Constitution of India. 6. The Writ Petition as such is dismissed. No costs. 7. Needless to state that the observations made herein are only prima facie in nature and the trial Court would decide the Suit on its own merits on the basis of the evidence adduced, dehors the observations made at the time of deciding the temporary injunction application. [ S.V. GANGAPURWALA,J. ] KNP/W.P. 9619.2011