:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.3830 OF 2008 PETITION NO.3830 OF 2008 PETITION NO.3830 OF 2008 Sou. Padmaja Appasaheb Takale ..Petitioner V/s Ramchandra Balu Takale & Anr. ..Respondents Mr.Amit Borkar for the petitioner Mr.V.B. Rajure for the respondents CORAM CORAM CORAM : A.A. SAYED, J. : A.A. SAYED, J. : A.A. SAYED, J. DATE DATE DATE : 2ND JULY, 2008 : 2ND JULY, 2008 : 2ND JULY, 2008 P.C. 1. This petition is directed against the order dated 18-01-2008 passed by the District Judge, Kolhapur, whereby, the appeal of the petitioner to set aside the order dated 30-10-2007 had passed by the Civil Judge, J.D. Kagal, came to be dismissed. The Trial Court vide its order dated 30-10-2007 had granted temporary injunction against the petitioner not to dispossess the respondents from the suit properties or cause obstruction to them. 2. The lands Gat No.561 admeasuring 0-02 R out of which half share, land Gat No. 562 admeasuring 0.3-03 R + pot kharab 0.02 R total share and the land gat No. 1620 admeasuring 0.04 R is the subject matter of the suit. The parties are sister and :2: brothers. The respondents had filed the suit seeking partition of the suit properties. It is the case of the petitioner that the father of the parties Balu Ishwar Takale was the owner of the suit properties. The said Balu expired on 30-8-1975. His wife Hirabai died on 19-2-1988. Hirabai in her life time transferred the suit properties to her name. The suit properties were thereafter transferred in the name of the petitioner by a will executed by the said Hirabai. The 7/12 extracts of the suit properties were sanctioned in the name of the petitioner. It is the contention of the petitioner that she is in exclusive possession of the suit properties and that she has voluminous documents evidencing her possession. According to the petitioner the respondents are not in possession of the suit properties and the Courts below ought not to have granted any injunction in favour of the respondents. The petitioner has relied upon the bills of sugar-cane produce in the name of her husband and contended that he has also paid taxes etc. and that she yields sugar-cane, ground-nut, maze crops etc. in the suit properties. The petitioner has contended that there is partition by metes and bounds of the :3: suit properties and that the lands in the will are the properties of Hirabai and that it is not necessary to obtain any probate in respect of the said will since the properties are situate in areas where probate or the letters of administration is not required to be obtained. 3. The learned Counsel on behalf of the petitioners submitted that there is an error apparent on the face of the record which has resulted in manifest injustice inasmuch as both the Courts below have granted injunction in favour of the respondents in spite there being no evidence on record of proof of their joint possession over the suit properties. It is his contention that both the Courts below have ignored the voluminous evidence produced by the petitioner. It is further contended by the learned Counsel for the petitioner that as per the provisions of Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, the jurisdiction of Civil Court is barred and the said issue is required to be settled by the State Government and an Officer is appointed by the Government for the same. It is contended by him that the question of :4: possession in respect of the suit properties can only be decided by the Consolidation Officer under the said Act. According to the learned Counsel, once the certificate by the Consolidation Officer has been issued in favour of the petitioner, it is prima facie evidence that only the petitioner was in possession of the suit properties. The learned Counsel further submitted that though his plea has not been specifically pleaded in the Courts below it is a question of law and therefore the petitioner is entitled to raise this plea even at this stage. 4. The learned counsel for the petitioner has relied upon the following cases - (1) Kishor Kumar Kishor Kumar Kishor Kumar Khaitan Khaitan Khaitan and another V. Pravin Kumar Singh, and another V. Pravin Kumar Singh, and another V. Pravin Kumar Singh, reported in (2006) 3 3 3 SCC 312, (2) Seema Arshad Saheer and Seema Arshad Saheer and Seema Arshad Saheer and others others others V. Municipal Corporation of greater Mumbai V. Municipal Corporation of greater Mumbai V. Municipal Corporation of greater Mumbai and and and others others others, reported in (2006) 5 SCC 282 (3) Ashok Ashok Ashok Yashwant Yashwant Yashwant Dhumal V. Shankar Maruti Dhumal & another Dhumal V. Shankar Maruti Dhumal & another Dhumal V. Shankar Maruti Dhumal & another, reported ed ed in 2001 (3) Bom. C.R. 27 (4) Prabhakar Prabhakar Prabhakar Khushaba Khushaba Khushaba Hagwane and others V. Yashwant Bhau Hagwane and others V. Yashwant Bhau Hagwane and others V. Yashwant Bhau Hagwane Hagwane Hagwane, reported in 1993 Mh.L.J. 1291, (5) Rajeshwari Rajeshwari Rajeshwari Amma and another V. Joseph and another, Amma and another V. Joseph and another, Amma and another V. Joseph and another, reported in (1995) 2 SCC 159. :5: 5. The case of the respondents on the other hand is that the suit properties are not partitioned by metes and bounds and the properties originally belonged to the deceased Balu. After the demise of Balu, Hirabai was not exclusive owner of the properties and therefore she did not have a right to bequeath the suit properties to the petitioner since all other heirs including respondents had right in the suit properties after the death of the deceased Balu. It is contended that in any event, no probate has been obtained in respect of the suit properties in favour of the petitioner and that obtainment of the probate is imperative. It is their case that revenue entries do not create any right in the suit properties and the respondents they have joint undivided peaceful possession and cultivation of the suit properties. 6. The learned Counsel for the respondents supporting the orders passed by the Courts below, submitted that admittedly the properties were the ancestral properties and same stood in the name of deceased Balu earlier. According to the learned Counsel barring the suit properties, the other :6: ancestral properties were partitioned and the suit properties were retained by deceased Balu himself. He submitted that the will of Hirabai is disputed and in any event, as the properties were ancestral properties, Hirabai did not have any right to bequeath the suit properties to the petitioner under her alleged will. The learned Counsel pointed out that Hirabai was a housewife as is evident from the will and had no source of income to purchase any properties of her own. The learned Counsel submitted that the Civil Court alone would have jurisdiction in the matter and the issue with regard to certificate under the provisions of Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 cannot be raised for the first time before this Court and therefore, cannot be considered at this stage. The learned Counsel submitted that merely because the revenue entries stood in the name of the petitioner, it would not confer any title on her. The learned Counsel argued that both the courts below have granted injunction after examining the evidence on record and this Court should not interfere with the orders of the Courts below in exercise of its writ jurisdiction. :7: 7. The learned Counsel for the respondents relied upon the following cases -(1) Rita Premchand and Rita Premchand and Rita Premchand and another another another V. State of Maharashtra and others, V. State of Maharashtra and others, V. State of Maharashtra and others, reported in 2001 (4) Mh.L.J. 671, (2) Ganesh D. Daivajna V. Ganesh D. Daivajna V. Ganesh D. Daivajna V. Prakash Prakash Prakash S. Salkar, S. Salkar, S. Salkar, reported in 2000 (3) Mh.L.J. 347, (3) Sidagonda Avagonda Sardar Patil and another Sidagonda Avagonda Sardar Patil and another Sidagonda Avagonda Sardar Patil and another V. V. V. Bhimgonda Kadgonda Kushappa Patil, Bhimgonda Kadgonda Kushappa Patil, Bhimgonda Kadgonda Kushappa Patil, reported in 2002 (2) Mh.L.J. 623. 8. I have heard the learned Counsel for the parties and perused the material on record . At the outset it is required to be noted that both the Courts below have examined the case of the parties and have granted injunction in favour of the respondents and held that the respondents have prima facie case and the balance of convenience lies in favour of the respondents and that the respondents would suffer irreparable loss in case temporary injunction is not granted in their favour. The order of the Trial Court is to the extent that the petitioner will not disturb the joint possession of the respondents and that no 3rd party rights would be created in respect of the suit properties, which :8: order has been affirmed in Appeal by the impugned order. It is settled position of law that revenue records would not confer any right in favour of the party. The fact that the mutation entries are in the name of the petitioner alone would therefore not be of assistance to the petitioner in the facts of the case. The alleged will is admittedly has not been probated. No attempt is made to justify the plea that the will is not required to be probated. Prima facie there is merit in the argument of the respondents that the suit properties being ancestral properties and belonging to deceased Balu, after his death, Hirabai had no exclusive rights over the suit properties so as to bequeath the same to the petitioner. So far as submission in respect of the certificate under section 24 of the Consolidation Act is concerned, I find that this plea has not been taken either before the Trial Court or Appellate Court or even in the present petition. This plea having not being raised even in the petition cannot be in my view be argued across the bar. The respondents have had no opportunity to rebut the case of the petitioner in respect of the alleged certificate. In any event the suit being a partition :9: suit it cannot be said that the Consolidation Officer alone would have jurisdiction to decide the matter. Merely because the records are in the name of one of the co-owners would not in itself establish that the petitioner is in exclusive possession of the suit properties. The decisions cited on behalf of the petitioners are on a different set of facts and circumstances and cannot lend support to the case of the petitioner. In my view, both the Courts below having considering the case of the parties and there being concurrent findings so far as prima face case, balance of inconvenience and irreparable loss is concerned, no interference with the impugned order is called for. 9. In this view of the matter, the petition does not warrant exercise of writ jurisdiction under Article 227 of the Constitution of India. The petition is accordingly dismissed with no order as to costs. Considering the facts and circumstances of the case, the Trial Court, shall dispose of the suit expeditiously. 10. It is clarified that the observations in the :10: order are prima facie and the Trial Court will not be influenced by the same in deciding the suit finally. ( A.A. SAYED, J.) A.A. SAYED, J.) A.A. SAYED, J.)