1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 6650 OF 2009 Somnath Dhondu Wadekar R/o. Khede, Tq. & Dist. Dhule. ....Petitioner. Versus Suresh Fakira Patil, R/o. Khed, Tq. & Dist. Dhule ....Respondent. Shri. S.P. Shah, Advocate for petitioner. Shri. M.S. Kulkarni, Advocate for respondent. CORAM : R.K. DESHPANDE, J. DATE : 13th July, 2010. PER COURT : 1. This writ petition is preferred by the original defendant, challenging the order dated 6.7.2009 passed by the learned District Judge -2, Dhule, allowing Misc. Civil Appeal No. 5/2009 filed by the respondent/original plaintiff, challenging the order dated 26.2.2009 passed below Exh. 5 in Regular Civil Suit No. 87/2008, rejecting the application for grant of temporary injunction. The application for temporary injunction, filed by the respondent/original plaintiff has been 2 allowed and the respondent is restrained from obstructing peaceful possession, occupation of the suit land till the suit is finally disposed of. 2. The respondent/plaintiff filed Regular Civil Suit No. 87/2008 for permanent injunction, restraining the defendant from interfering with his possession over the suit property. It is not in dispute that the plaintiff has purchased the suit property under the sale deed dated 7.5.2007, from the original owner Isamiya. However, the defendant claimed that he is tenant in respect of the suit property right from 1952-53 and at no point of time, he has been dispossessed from the suit property. According to the defendant, he was protected tenant as per the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948. 3. The Trial Court passed an order dated 26.2.2009, rejecting the application filed by the plaintiff for grant of temporary injunction (Exh. 5), restraining the defendant from interfering the possession of the plaintiff over the suit property. The Trial Court has recorded a finding that the 7/12 extract indicated that the defendant was in possession of the property from 1952-53 to 1994-95. A further finding is recorded that the 7/12 extract for the years from 1995-96 to 2006-07, the revenue record, does not indicate that the name of the plaintiff is recorded to the revenue record of the suit property. However, a finding is recorded that Exhs. 43, 45, 47, 48 and 50 to 58 goes to show that Somnath Dhondu paid the revenue tax to the Government since 22.4.1975 up to 7.5.2005. It was 3 held that the defendant was in possession of the property and therefore, the application for temporary injunction was rejected. Para 12 of the order of Trial Court, to which reference was made by Shri. S.P. Shah, the learned counsel for the petitioner, is reproduced below :- "12. It is not disputed to both the parties that, plaintiff has purchased suit land from original owner Isamiya on 07/05/2005. But, main controversy is regarding possession through it is mentioned in sale deed i.e. xerox copy of sale deed list of document Exh. 3, Sr. No. 5 that possession handed over by the original owner to the plaintiff but, the documents filed by the non applicant goes to show that there was no possession of original owner since 1952-1953 at all. In this situation, question does not arise to hand over the possession by the original owner to the present plaintiff. But, on considering affidavit filed by Vinayak Pundlik Thorat vide Exh. 64 and Ravindra Hari Rasne vide Exh. 65 who are neigbour of suit field have contended in their affidavit that, Uttam Dhondu and Somnath Dhondu were cultivating suit land jointly since 1952 and after death of Uttam Dhone, Somnath is cultivating the suit land till today being brother of deceased Uttam Dhondu. As well as revenue record is also shown possession of deceased Uttam and Somnath Dhondu over suit land since 1952-1953. The presumption arising from several entries in the Revenue record of large number of years in respect of possession of land which certain person does not stand rebutted by mere stray entries in favour of the other when the evidence is of uncertain character and inadequate. If defendant is in possession of property then temporary injunction cannot be used to deprive defendant of his possession. It is seen that original owner Isamiya delivered possession of suit land on papers only by executing sale deed. But, since 1952-53 till purchasing suit land by plaintiff actual possession of suit land was not with original owner on considering documents placed on record by the defendant and plaintiff as well as affidavits filed by the plaintiff and the defendant, it is appearing that applicant has not made out prima- facie case as well as balance of convenience is also 4 not lying in his faour and comparatively he will not cause any irreparable loss than the non applicant on considering his possession over the suit land. Therefore, in view of foregoing discussion, I answer point Nos. 1 and 2 in the negative and proceed to pass the following order :-" 4. In an appeal preferred by the original plaintiff, the Appellate Court has held that the mutation entries for the year 2007-08 and 2008-09 establish the possession of the plaintiff over the suit property. The finding is recorded that prima facie case is made out by the plaintiff and the balance of convenience lies in favour of plaintiff. It is further the finding recorded that if injunction is not granted, it is the plaintiff, who will suffer irreparable loss. In para 16, 17 and 21 of the judgment of the Appellate Court, the question of the possession has been dealt with, which is reproduced below :- "16] Perusal of 7x12 extract no doubt clearly revealed that till 1994-95 respondent's brother Uttam was in possession of the suit land. But that entry does not necessarily goes to show that, respondent Somnath was along with him was a possessor or he constituted joint Hindu family with Uttam. Secondly, the cultivation columns are found to be blank from 12995-96 onwards. This does not mean that, respondent's brother Uttam was continued to be in possession and cultivation of the suit land. If this situation arises then in that case, I find owner can be safely presumed to be in possession of the suit land. There isn't convincing and substantial material on record that respondent Somnath along with his brother were in possession of the suit land, and that too referable to valid title from 1995-96 onwards. The best possible material record i.e. 7/12 extract favours appellant. 17] If respondent claimed to be in possession of 5 the suit land, then their possession must be referable to valid title. But there isn't any documentary material to that effect. Revenue record is more authentic to disclose possession than the affidavit of neighbourer. Therefore, the contention of respondent that they were constantly and continuously in possession of the suit land and more so from 1995-96 onwards cannot be accepted. 18] ........... 21] Thus the contention of respondent and submission of Mr. Jagtap that it is the respondent who is in possession of the suit land since 1952 initially through his brother Uttam and thereafter he himself cannot be accepted. On the other hand there is a bulk of material on record which goes to show appellant is in possession of the suit land by virtue of sale deed dated 7/5/2007." 5. The Appellate Court recorded the finding that the Trial Court has committed an error in appreciating the material available on record, holding that the defendant and his brother deceased Uttam were in possession of the suit land since 1952 till date and that the stray entry in 2007-2008 is insufficient to dislodge the long standing possession. On the basis of aforesaid findings, the order of injunction has been granted. 6. Bare perusal of the findings recorded by the Courts below, it is apparent that the Courts below have taken into consideration the evidence placed on record by the plaintiff as well as by the defendant. The Trial Court on appreciation of the evidence arrived at a finding that defendant was in possession of the suit property. As against this, the Appellate Court has recorded a finding that the plaintiff has established 6 his possession over the suit property. At any rate, it is a possible view taken by the Appellate Court and hence, no interference is called for. 7. In view of above, there is no substance in this writ petition. The same is, therefore, dismissed. [ R.K. DESHPANDE, J. ] ssc/wp6650.09