1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.97 OF 2010 Shri Krishna Mandir Mahanubhav Ashram Trust ..Petitioner Versus Shanta Amrutrao Jodrane Patil and others ..Respondents ... Advocates appearing for : Petitioner : Smt. P.V.Lange Respondents 1 & 2 : Shri A.S.Bajaj h/f Shri S.R.Malani. ... CORAM : S.B.DESHMUKH,J. Dated : 7.1.2010 PER COURT :- 1. Heard learned counsel for the respective parties. 2. Rule. By consent, Rule made returnable forthwith. 3. This petition takes an exception to the judgment and order passed by the learned IV District Judge, Aurangabad in Misc. Civil Appeal No.31 of 2007. By the impugned order, the order below Exhibit 5 by the trial court in RCS No.412 of 2006 has been quashed and set aside 4. Petitioner / plaintiff has filed the said suit in the court of learned Civil Judge S.D. Aurangabad for declaration of ownership and 2 perpetual injunction in respect of the suit properties. Respondents in this writ petition are the defendants in the suit. The suit property is described in the plaint as part of gut Nos. 77 and 79 situated at village Itkheda, Taluka and District Aurangabad. Copy of the plaint is made available to the Court for perusal by Shri Bajaj, learned Advocate appearing for the respondents. This copy is also made available for inspection to the learned counsel for petitioner. Indisputably, the petitioner is a trust registered under the provisions of the Bombay Public Trusts Act, 1950. The petitioner claims that the suit property is in possession of the petitioner for more than 30-35 years. Rough sketch showing the location of the suit property is annexed with the plaint. In paragraph No.10 of the plaint, a statement is made by the petitioner that the suit plot ad measuring 125 x 42 feet has been gifted by Shri Nandkishor Kagaliwal to the then Mahant Nagaraj Baba. It is alleged that said Mahant Nagaraj Baba was the founder of Shrikrishna Mandir and Mahanubhav Ashram. It is relevant to notice that the opening sentence of paragraph No.3 claims that the plaintiff had purchased the lands Gut Nos.77 and 79. In this paragraph, plea of acquisition of suit plot by purchase and acquisition of title to the suit plot by gift is pleaded by the plaintiff. Learned counsel appearing for the plaintiff fairly concedes that written gift deed was not executed in favour of founder member Mahant Nagraj Baba. Learned counsel for the petitioner further submits, on instructions, that it was the oral gift. There is no pleading in the plaint as a whole to show that the suit plot was orally 3 gifted by Shri Nandkishor Kagaliwal. The plaintiff in his plaint, contends that the suit property is in actual and physical possession of the plaintiff for more than 30-35 years, plaintiff is in settled possession of the property and therefore, in law, is entitled to protect his possession unless evicted by following due process of law even by the true owner. The plaintiff has also made a statement and/or pleading at the end of paragraph No.3 that plaintiff became owner of the plot as per concerned provisions of law. The learned counsel for the plaintiff submits that the plaintiff has acquired tittle to the suit property by principles of adverse possession. 5. Learned counsel for the petitioner submits that the trial court allowed the application for temporary injunction. She took me through the various paragraphs and observations made by the trial court, holding that the plaintiff is in settled legal position of the suit property. Documents like photographs, 7/12 extracts etc. have been referred to by the trial court as pointed out by the learned counsel for the petitioner. The learned counsel for the petitioner submits that the finding of the learned District Judge is perverse. The learned District Judge even did not care to appreciate the documentary evidence pointing out possession of the plaintiff over the suit property. She, therefore, claims quashment of the order passed by the first appellate court in the Misc. Civil Appeal. 6. Shri Bajaj, learned Advocate appearing for the 4 respondents supports the order passed by the first appellate Court. According to him, there is no prima facie case, in favour of the plaintiff and the first appellate Court has justifiably over turned the order passed by the trial court. 7. Some reported judgments were cited before the first appellate Court. The first appellate Court has considered those in paragraph No.19 of the order. The learned counsel for the petitioner relies on the judgment of this Court (Coram : S.B.Deshmukh,J.) in the matter of Shekoji Bhimrao Vs. Motiram Maruti [2007 (1) ALL MR 593]. The facts have been listed by the Court in paragraph No.2 of the reported judgment. There was a dispute amongst the sons and father. Nature of the property was ancestral joint family property. Partition had been effected amongst the members of the joint family. The suit property of that case was allotted to the plaintiffs. I have noticed other facts also from paragraph No.3. It was the Second Appeal No.61 of 1986. The case on hand can be differentiated on the background of the fats obtained. The ratio of this judgment has no application to the facts available on record. Another judgment relied upon by the learned counsel or the petitioner is in the matter of Sarladevi Vs. Shailesh [AIR 1996 Bom 98]. It was also Second Appeal before the learned Single Bench of this Court. Therein the learned Single Bench of this Court has held that a person in possession can claim an injunction against every one including the original owner. The facts have been noticed in paragraph 5 Nos.2 to 6 of the judgment. In the said judgment, it has been observed that the plaintiff had proved initial entry of her husband, which was lawful. He was put in possession by the society and after him the plaintiff-widow has continued to be in possession. The learned Single Bench has further recorded a finding that possession in that case of the plaintiff is uninterputed right from 1965 or at least after the death of her husband in 1980, till the date of the filing of the suit. The facts in this judgment, on careful consideration, in my view, are altogether different to that of the facts obtaining in the case on hand. The ratio of this judgment does not help the petitioner. Learned counsel for the petitioner relied on one more judgment of the learned Single Bench of this Court in the matter of Pramila Vs. Dr. Harish [2005 (4) ALL MR 288]. It was the plaintiff's suit for perpetual injunction under section 38 of Specific Relief Act. There, the learned Single Bench of this Court considered the provisions laid down under Order XXXIX Rules 1 and 2 of CPC. On the facts obtaining in that case, the learned Single Bench has held that even though the plaintiff has failed to prove any agreement, his possession can only be disturbed by the defendant by following due process of law and not by other means. There, in that case, from paragraph No.3, it appears that some where in 1985 there was a mutual agreement amongst the plaintiffs and defendants of that case along with one more brother Dr.Kishor. Such agreement was for construction of two flat since F.S.I. Was available in view of the relevant Rules. Agreement was for construction of such flats for each of the sons. There were other 6 terms of the agreement also. Accordingly, learned Single Bench has observed that the plaintiff had paid for the construction. The learned Single Bench was of the opinion, on the background facts and material of the case, that it was a case where the plaintiff under the garb of injunction wants to exert and exercise the ownership right over the ground floor though he may not be able to sell the property. I have detailed these facts to find out as to whether the ratio of this judgment can be said to have an application to the facts of this case. In my opinion, this judgment is of no help to the petitioner 8. I have referred to pleas of the petitioner in the foregoing paragraphs. In substance, there is a plea of adverse possession for acquisition of title to suit property, title by sale deed, though sale deed is not on record. There is another plea of acquisition of title to the property by gift, though such gift deed is argued to be oral gift. The learned counsel for the petitioner could not point out any piece of document and/or could not disclose the date on which the plaintiffs entered the suit property lawfully. 9. I have considered the findings of the first appellate Court, which order is impugned in this writ petition. The order passed by the first appellate Court cannot be said to be perverse and/or illegal. The grant of temporary injunction is a matter of judicial discretion to be exercised under the provisions of Order XXXIX Rules 1 and 2 of CPC with relation to the material available on record. Such 7 judicial discretion can be substituted by the first appellate Court. Here is the case, in my view, wherein the first appellate court has justifiably upset the order passed by the trial court. I see no ground for interfering with the impugned order in extra ordinary jurisdiction. 10. In the result, Writ Petition stands dismissed. Rule discharged. No order as to costs. ( S.B.DESHMUKH, J.) ... akl