1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.91 OF 2009 ------------------------------------------- Milind s/o Balasaheb Deshmukh and one another. ..Appellants. (orig. plaintiffs.) v e r s u s Santosh s/o Bhaskar Surve and one another. Respondents. Shri R.N.Dhorde , advocate for the appellants. Shri R.D.Bhalerao , advocate for Respondent no.1. Shri M.V.Dhongade advocate for respondent No.2. CORAM: P.R. BORKAR, J. DATE : 20TH AUGUST, 2009. P.C.: 1. This appeal from order is directed against the rejection of application exh.5 filed in special civil suit No.23/2009 which is refused by learned Civil Judge Senior Division, Sangamner on 15.07.2009. 2- Briefly the case is stated that :- It is the case of the plaintiff-appellants that S.No.74/5 situated at village Javalekadlag, Tq Sangamner District Ahmednagar owned by respondent No.2 Sambhaji s/o Bhikaji Kadlag. On 18.07.1994, the appellant entered into lease agreement with respondent No.2. 2 Lease was for three years and rent was Rs.3,000/- per year. Since thereafter, the land was leveled, pipe line was laid and appellant took crop of sugar cane and which was supplied to the Sangamner Sugar Factory in the name of plaintiff no.2. It is further stated that when lease agreement was about to come to an end, the plaintiffs-appellants asked the respondent No.2 whether lease was to be extended if rent was increased. To this the respondent No.2 agreed and rent was fixed at Rs.5,000/-. For 7-8 years pomegranates were raised and there after in 2006 the appellants planted sugar cane crop and they took also ratoonl crop. Sugarcane was supplied in the name of appellant No.2 to the Sangamner Sugar factory. In 2006, the respondent No.2 had given consent deed in the form of affidavit executed before the Executive Magistrate Sangamner on 10.10.2006 and on the basis of same, the sugarcane was entered in the name of plaintiff no.2. It is also stated that rent was paid from time to time. The plaintiffs are in possession of the property. Inspite of that the respondent No.2 sold the property to respondent No.1 by registered sale deed of Rs.4,95,000/-. It is also stated that real transaction between respondent was about Rs.12.00 lacs, in order to avoid stamp duty consideration of Rs.4,95,000/- was shown. In 3 the circumstances suit was filed for declaration that sale deed executed by the respondent No.2 in favour of respondent No.1 was illegal and void and for injunction restraining the respondent no.1 from obstructing/ interfering with the possession of the plaintiff over the suit property. 3. The respondent no.2 filed his written statement and denied that at the end of lease agreement in 1997 there was an agreement to extend lease. It is stated that on 20.10.1997, the plaintiff no.2 executed a surrender deed in favour of respondent no.2 and on that day handed over the possession to the respondent no.2 and since 1997 the appellants have no concern with the suit property. The execution of the document on 20.10.1997 and the surrender of lease was deliberately concealed from the court. It is further stated that the respondent no.1 purchased property from respondent no.2 after verifying the possession on paying the amount. In paragraph 14 it is stated that, after surrender in 1997 plaintiff have no concern with the respondent however the respondent no.2 planted sugar cane crop and he had purchased water from plaintiffs and amount was paid towards water supplied for the sugarcane and at that time the alleged agreement cum affidavit was executed by respondent no.1. At that time after payment was taken by 4 respondent no.2 and he paid Rs.20,000/- to respondent no.2 by cheque towards price of the sugar cane after deducting price/value of water supply. 4. The respondent no.1 also filed affidavit supporting say of respondent No.2 and claimed that he is in possession of th property. 5. The learned civil judge after considering the entire record came to the conclusion that plaintiffs failed to prove primafacie case, the balance of convenience is also not in his favour, plaintiffs are not in possession of the property and therefore he refused to grant temporary injunction. 6. At this stage, it is admitted that the plaintiff had surrendered lease and lease surrender deed dated 20.10.1997 produced at Exh.B with appeal memo, was executed by plaintiff-appellant no.2 in favour of respondent No.2. It is worth noting that at exh.A along with appeal memo original lease deed is produced and both these documents show that the suit property was shown as S.No.74/2+13/2 and it was ad measuring 1 H 19 R. Both these documents show that property was jirayat land. It is also clear that on one side, southern side of suit property there is another hissa from survey no.74. It appears that present 5 survey number of the suit property is 74/5. 7. It is argued by the learned advocate of the appellants that omission to refer to the deed of surrender of lease was inadvertent and hence said fact was not mentioned, but the trial court hold so also, the advocate argued that plaintiff deliberately attempted to conceal the true facts from the court and obtained ad-interim order. 8. In order to prove the possession, the plaintiff-appellants also wants to rely on weight bills of supply of sugar cane to sugar factory produced with exhibit D with the appeal memo. They are various weight bills executed between 21.01.2009 to 28.02.2009. The advocate of the appellant stated that these documents clearly indicate the supply of sugarcane by the plaintiffs to the Sangamner Sugar Factory. At Exh. E there is a document dated 10.10.2006 to which reference is made by the parties in the pleadings and as per this affidavit executed before the Executive Magistrate, Sangamner, the respondent No.2 agreed that in S.No.74/5 in 1 H 19R land plaintiff No.2 Balasaheb has planted sugar cane and respondent No.2 was giving consent to making of the payment to the appellant no.2. In the written statement the respondent No.2 has explained that since water was supplied by the appellant- 6 plaintiffs, the amount of price of water supply was to be paid. He had given consent for supply of sugar cane in the name of plaintiff no.2 and therefore he executed the document. He had raised sugar cane and towards price of sugar cane he has got Rs.20,000/- by cheque. The learned advocate pointed out that so far as weigh bills are concerned, they only mention as S.No.74 and area is shown as 1 H. The learned advocate of the appellant also pointed out name of gat (block). However it is admitted position that still suit property is bearing S.No.74/5 and it is not changed into gat and more over what is mentioned as name of gat is ‘5 Javalekadlga’. So this requires further explanation. Moreover admittedly, S.No.74/5 is 1 H 19R and not 1 H. It is said that sugar cane was grown in hectare area. The 7/12 extract produced by respondents along with in C.A. No.7593/2009 for the year 2008-09 show that in land S.No.74/5 two crops were taken in the year, first was bajara and then wheat crop was taken. So it does not appear that sugar cane crop was taken in the suit property in the year 2008-2009. 9. The learned civil judge has also referred to the 7/12 extracts and has observed that 7/12 extracts for the year 1997 onwards clearly indicate the possession of respondent no.2. Moreover, even assuming 7 the statement of plaintiffs in the plaint as true on face value nobody would pay Rs.12.00 lacs for a land which is not in possession of its owner. In the facts and circumstances, in my view, this is not a case in which interference is warranted in the dis creation used by the learned civil judge Senior Division. Hence appeal from order is dismissed. 10. At this stage, the learned Advocate of the appellant wants direction to continue interim protection for a period of 15 days. in my opinion this court so also the trial court have concurrently held that defendants-respondents are in possession and hence prayer not granted. ( P. R. BORKAR ) JUDGE ******* aaa/91.09