1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 7854 OF 2010 1 Devidas s/o Lukadu Patil age 35 years, occ. Agril 2 Ramchandra s/o Lukadu Patil age 55 years, occ. Agril Both r/o Sarve (Bk.), Tq. Parola Dist. Jalgaon. .. PETITIONERS VERSUS 1 Rajendra s/o Lotan Patil age 34 years, occ. Agri. & business r/o Parola near Old Post Office Tq. Parola, Dist. Jalgaon. 2 Narsing s/o Lukadu Patil } age 49 years, occ. Agril. } Deleted vide Court } order dt.12-10-2010 3 Vinod s/o Ramchandra Patil } age 28 years, occ. Agri. } } Both r/o Sarve (Bk.), Tq. Parola } Dist. Jalgaon. } .. RESPONDENTS Mr. A.K.Tiwari, advocate for the petitioners. Mr. S.R. Patil, advocate for respondent no. 1. ===== CORAM : R. M. BORDE, J. DATE : 12 th OCTOBER, 2010. ORAL JUDGMENT : 2 1 Heard. 2 Rule. With the consent of the parties, the petition is taken up for final disposal at admission stage. 3 Learned counsel for the petitioner seeks leave to delete the names of respondent nos. 2 and 3. Leave granted. Names of respondent nos. 2 and 3 stand deleted. 4 Order passed by the first appellate court in Misc. Civil Appeal no. 14/2009 on 17-7-2010 reversing the order passed by the trial court refusing to grant interim injunction in favour of the respondent / original plaintiff is subjected to challenge in this petition. 5 Respondent / original plaintiff instituted suit claiming decree of perpetual injunction against the plaintiff being Regular Civil Suit no. 14/2009. In the pending suit, plaintiff / respondent herein also presented application at exh. 5 seeking order of temporary injunction against the defendants. It is contended by the plaintiff in the suit that the father of the defendants has sold part of the property in the year 2003 on executing a registered sale- 3 deed. It is contended that he is put in possession in pursuance of the sale- deed. There is revenue entry recorded in the year 2008 recording the name of the plaintiff as the possessor of the property. However, defendants are causing interference in his possession without any right, title or entitlement. 6 Defendants have opposed the application by filing say. Defendants contend that the transaction of sale between the plaintiff and their father dt. 13-6-2003 was not to be acted upon. The sale transaction was a nominal one and was in the nature of loan transaction. Loan amount was advanced by the plaintiff in favour of father of the defendants and towards security for amount the document was executed. It is contended that there was a fresh agreement of re-purchase entered between the parties. Consideration for reconveyance was settled at Rs.4,25,000/- out of which an amount of Rs.2,25,000/- was advanced by the plaintiff and stamp of Rs.100/- was purchased and the same was reduced in writing. However, under the pretext that plaintiff wants to keep his mother present for the purpose of execution of the document, he did not put his signature on the stamp paper. There was also criminal proceeding initiated against the plaintiff for offence under section 420 r/w section 34 of the Indian Penal Code. The matter is under investigation by the police as the court has directed enquiry under 4 section 156(3) of the Code of Criminal Procedure. Defendants have placed on record affidavits of the adjoining owners to support their contentions that they are in possession of the property. Defendants have also presented affidavits of witnesses to the sale transaction in the year 2003 who have categorically stated before he court that the transaction between the father of the defendants and plaintiff was not in th nature of out and out sale but the same was a loan transaction. Affidavit of the scribe of the document is also placed on record who has supported the case put up by the defendants. Considering all these aspects, trial court refused to grant injunction in favour of the plaintiff. Appellate court, however, while considering the appeal presented by the plaintiff has reversed the order passed by the trial court. 7 I have perused the judgment passed by the first appellate court. Surprisingly enough, the appellate court has not referred to the evidence placed on record by the defendant, while reversing the order. There is no appreciation of evidence placed on record by the defendants in the form of affidavits of adjoining owners, witnesses to the sale transaction as well as the scribe who supports the case put up by the defendants. The first appellate court was required to deal with the aspect of factum of present 5 possession of the parties in relation to the property. However, the first appellate court considered the principles of Evidence Act and proceeded to allow the appeal and clamped order of injunction against the defendants. On the face of it, the order passed by the first appellate court is not sustainable. Normally, this court is slow in considering the defences which are in contradiction with terms of the written document. But this is an exceptional case wherein the circumstances have been brought on record by the defendants to come to a prima faice conclusion that the transaction incorporated in the written document does not appear to be so and a doubt is created. Defendants have placed on record affidavits of all the adjoining owners who support the case of the defendants in respect of their present possession over the disputed property. Apart from this aspect, the scribe of the sale-deed has unequivocally stated before the court that the transaction incorporated in the written document is not as recorded but the real transaction is in respect of advancement of loan. Apart from the witnesses to the sale transaction, the scribe to the document has also supported the case put up by the defendants in respect of nature of the transaction. Evidence for contradicting the terms of the written document is permissible in certain circumstances and is required to be gone into at the stage of final decision of the suit. Prima facie, it does appear that the 6 defendants are in possession over the property. The first appellate court has over looked the evidence placed on record and has proceeded to reverse the order passed by the trial court. Another aspect that is required to be taken note of is that although the plaintiff claims that he has purchased the property in the year 2003, till the year 2008-2009 i.e. for 5 to 6 years name of defendant appeared in the revenue record as possessor of the property. This is an additional circumstance for recording finding in favour of the defendant. For the reasons stated above, writ petition deserves to be allowed and the same is accordingly allowed. Order passed by the District Judge – 1, Amalner on 17-7-2010 in Misc. Civil Appeal no. 14/2009 is quashed and set aside. Rule is accordingly made absolute. In the facts and circumstances of the case, there shall be no order as to costs. 8 Pending civil application, if any, does not survive and stand disposed of. ( R. M. BORDE, J.) dyb/office/wp7854.10.odt