-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.3803 OF 2008 PETITION NO.3803 OF 2008 PETITION NO.3803 OF 2008 Mahadeo Khandu Gardade & Anr. ..Petitioners V/s. Shri Haribhau Dhaku More & Ors. ..Respondents Mr. S.A. Sawant, Advocate for the Petitioners Mr. Y.S. Shinde, Advocate for the Respondent No.7 CORAM CORAM CORAM : A.M. KHANWILKAR, J. : A.M. KHANWILKAR, J. : A.M. KHANWILKAR, J. DATE DATE DATE : 7TH JULY, 2008 : 7TH JULY, 2008 : 7TH JULY, 2008 P.C. : . Heard counsel for the parties. I see no merits in this Petition. The view taken by the Court below is a possible view. Reliance is placed by the Petitioners on documents such as essara pawati dated 22nd September, 1988 as well as 15th November, 1989. In no manner, these documents would establish the case of the Petitioners that the title of the suit property was intended to be passed on to the petitioners as such. 2. The Petitioners would then rely on the registered document dated 20th March, 2004 executed in favour of the Petitioners by Respondent Nos.1 to 4. However, it is of no avail to the Petitioners. For, the Respondent Nos.1 to 4 have had no authority to deal with the suit property for which, even the Petitioners have taken recourse to remedy of criminal action. In -2- that sense, the Petitioners cannot be permitted to rely upon the said document though registered, as it is not by persons competent to transfer the title in respect of the suit property in favour of the Petitioners. 3. Reverting back to the other two documents, namely essara pawati dated 22nd September, 1988 and 15th April, 1989 as there is no indication that title was passed on to the Petitioners, the Petitioners cannot claim higher right than the one mentioned in the said document. The purpose of the said document is only entitling the Petitioners to cultivate the suit land for a period of 99 years. 4. On the other hand, the title in respect of the suit properties is transferred in favour of Respondent No.7 by the land owner by executing document dated 21st October, 2005. Thus understood, the Petitioners cannot succeed in getting any relief against the Respondent No.7 of injunction not to use the suit property. 5. The only other question that remains to be addressed is regarding factum of possession. The Petitioners are merely relying on the two documents dated 22nd September, 1988 and 15th November, 1984 to assert that they were in possession. No other contemporaneous document is produced on record. No -3- independent evidence to substantiate the factum of possession on account of the aforesaid two documents have been brought on record. On the other hand, the Respondent No.7, besides relying on registered document dated 24th October, 2005, also relies on the 7 x 12 extract, which clearly indicates the factum of possession of the suit land with the Respondent No.7. In that sense, even with regard to issue of injunction, the basis of possession of Petitioners is rightly reckoned. 6. Accordingly, there is no reason to interfere with the conclusion reached by the Court below in rejecting Petitioners’ application for injunction as prayed for during the pendency of the suit. 7. The argument of the Petitioners that they have already filed the suit for Specific Relief and if the property is allowed to change hands or alter the user thereof, the suit would become infructuous is only an argument of desperation. For, the Respondent No.7 on the basis of registered sale deed by competent owner of the land dated 21st October, 2005, prima facie, has become absolute owner thereof. As aforesaid, the Respondent No.7 has established the fact that he is in possession of the suit property, substantiated by contemporaneous independent evidence. The Respondent -4- No.7, therefore, will be free to deal with the suit property. Nevertheless, the Respondent No.7 has no intention to create third party right, title or interest in the suit property nor to use the property for his own use for any other purpose than for which the Respondent No.7 has already obtained conversion permission from the competent authority regarding change of user from agricultural to non-agricultural user. The Respondent No.7 assures to utilize the suit property for personal use and not to create third party interest therein. That assurance is accepted. In view of this assurance, no further order or direction is necessary. 8. Needless to observe that the conversion of the suit property or exploitation thereof by the Respondent No.7, all these matters will be subject to the out come of the suit between the parties. 9. It is clarified that the Court shall decide the suit on its own merits uninfluenced by the observations made in the impugned order or for that the matter, the present order which is only for the limited purpose of consideration of prayer for interim relief. Petition dismissed. (A.M. (A.M. (A.M. KHANWILKAR, J.) KHANWILKAR, J.) KHANWILKAR, J.)