1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 7056 OF 2008. Rustum Bala Magar. .... PETITIONER. VERSUS Gram Panchayat, Mundwadi, Tahsil Kannad, Dist. Aurangabad and another. .... RESPONDENTS. ... Shri A.P. Chawre,Advocate for Petitioner. Shri P.F. Patni, Advocate for Respondent No.1 & 2. ... CORAM : S.S. SHINDE, J. RESERVED ON : 10.08.2009. PRONOUNCED ON : 12..08.2009. PER COURT: 1. This petition is filed challenging the impugned judgment and order dated 23rd October, 2008 passed in Misc. Civil Appeal No.84 of 2007 by the learned District Judge-2 at Aurangabad and the order dated 23rd May, 2007 passed below Exh.5 in R.C.S. NO.39 of 2007 by the Joint C.J.J.D., at Kannad by which the application for temporary injunction filed by the petitioner came to be rejected. 2. The case of the petitioner is that on on 19.2.1986 he purchased the suit plot admeasuring 80 x 25 = 2000 sq.ft. under registered sale deed . 2 It is further case of the petitioner that he was in peaceful possession of the said plot. One Mr. Misal purchased adjoining plot from the petitioner's vendor. The northern boundary of the said adjoining owner and that of the petitioner run over the same line. On 15.3.2007 the defendants / respondents proposed commercial construction over the plot of land belonging to the petitioner and his adjoining owner. Both the aggrieved parties, the owner of adjoining House No.40 and the petitioner as well, filed Civil Suits before the trial Court. On 23.5.2007 the trial Court allowed the temporary injunction application of the owner of adjoining house No.40. However, rejected the application filed by the petitioner for temporary injunction. 3. Being aggrieved by the said order, the petitioner filed Misc. Civil Appeal on 6.6.2007 for temporary injunction, which came to be dismissed on 23rd October, 2008 and hence, this petition. 4. The learned Counsel for the petitioner submits that though the petitioner – plaintiff had made out strong case on the basis of his possession and the same was supported by the title document under which the petitioner purchased the land within particular boundaries with definite measurements, both the courts have erroneously rejected the application for temporary injunction filed by the petitioner – plaintiff. The learned Counsel further submitted that the case of the present petitioner 3 was supported by the affidavit of the independent persons of the village including the petitioner’s predecessor in title and other persons from the village. Even then, the application for temporary injunction came to be rejected. The learned Counsel invited my attention to pages 46, 48, 50 and 52 of the compilation and submitted that overwhelming evidence was produced on record including affidavits to show that he is in possession. It is further submitted that the sale deed executed in favour of the petitioner is first in time and subsequently, other sale deeds are executed in favour of other persons. It is further submitted that when the adjoining owner’s application for temporary injunction was entertained, there was no reason for not granting temporary injunction in favour of petitioner. He further submitted that the trial Court has not given reason to reject the application for temporary injunction and such order is not sustainable. He further submitted that the courts below have relied and took into consideration the property of one Mr. Shivlal while deciding the matter. In fact, Shivlal had purchased the property subsequent to the present petitioner. He further invited my attention to the grounds in the petition, annexures thereto and submitted that since the matter is pending for framing issues, this Court may direct the parties to maintain status quo till the suit is decided. The learned Counsel relied on reported judgment of the Apex Court in the case of Gangubai Babiya Chaudhary and others v. Sitaram Bhalchandra Sukhtankar and others [AIR 1983 SC 742], more particularly paragraph 4 of the same and submitted that this Court may entertain this petition and grant relief as prayed in the petition. 4 5. On the other hand, the learned Counsel for the respondents invited my attention to the order passed by the trial Court as well as the appellate Court and submitted that both the Courts have concurrently held that the petitioner failed to prove that he is in settled possession of the property. The learned Counsel invited my attention to page no.14 which is a map placed on record by the petitioner himself and submitted that mere perusal of the map would show that there is property of the respondents on which the petitioner wants to encroach. According to the learned Counsel for respondents, the original vendor, who sold the property to various three persons, had only 100x100 ft. piece of plot and if now the property of three persons is taken together, it comes to more than 100x100 ft. The learned Counsel further submitted that the trial Court has rightly observed that the person who is approaching the Court seeking relief should come with clean hands by disclosing the entire facts on record. In the present case, the petitioner did not disclose before the trial Court that the respondent Gram Panchayat has rejected his application for taking entry. The learned Counsel further submitted that in para 13 of the appellate Court’s order, the Court has observed that the plaintiff has utterly failed to establish prima facie case in his favour and failed to substantiate possession over property purchased by him under the said sale deed. Therefore, the learned Counsel submits that no interference is called for by this Court under Article 227 of the Constitution. 5 6. After hearing the learned Counsel for the petitioner and respondents, I am of the considered view that the order passed by the trial Court as well as lower appellate Court cannot be faulted with. The trial Court in paragraph 7 has observed that the petitioner has not approached the court with clean hands by disclosing all true facts in the application. The petitioner has not mentioned in his application that his application to take entry in the record on the basis of sale deed was rejected by the Gram Panchayat. It is further mentioned that in the sale deed the area is 80x25 ft. On the basis of the sale deed no entry is taken in the Gram Panchayat record and his request to take entry in the Gram Panchayat record has been rejected by the Resolution of Gram Panchayat. The sum and substance of the order passed by the trial Court is that the person who is seeking relief of injunction should have approached the Court by disclosing all true facts in the application and concealment of any relevant fact dis-entitles the concerned person to seek equitable reliefs. The trial Court in paragraph 10 further observed that the petitioner is not entitled for the temporary injunction as prayed. 7. The lower appellate Court, after detail discussion in para 11 has observed thus: “11. ...... in the light of map drawn by the City Survey Officer, the claim made by plaintiff would be beyond said 100 feet of land, 6 which is between north – south, it will over-lap the property of defendants, as shown in the blue coloured box in said map. Thus, it can be said that, the plaintiff has utterly failed to establish prima facie case that he is owner and possessor of land described in the plaint, as described in the sale deed.” 8. Further in paragraph 13 of the judgment, the lower appellate Court observed that the plaintiff has utterly failed to establish prima facie case in his favour and failed to substantiate possession over property purchased by him under the said sale deed. 9. On careful perusal of the findings recorded by the Court below, I am not convinced that the said findings are perverse, in any manner. Both the Courts concurrently held against the present petitioner and refused the prayer of temporary injunction. After all, granting application for temporary injunction is discretionary relief and when both the Courts on facts have found that this is not a fit case to exercise discretion for the reasons recorded in the impugned orders, no interference is called for. Writ Petition is dismissed. [ S.S. SHINDE, J ] PLK/# 7 After pronouncement of the order, the learned Counsel for the petitioner prays for continuation of the interim relief for further four weeks. The learned Counsel for the respondents submits that since the respondent - Gram Panchayat has received grants for construction from the Govt. and the respondents have to carry out the construction within time limit, interim relief may not be continued any further. I do not think that the interim order granted by this Court during pendency of this petition can be continued any further. Hence, prayer for continuation of interim relief for four weeks is rejected. [ S.S. SHINDE, J ] PLK/#