1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3909 OF 2008 Laxman S. Shilamkar and Ors. .. Petitioners Versus Ashok B. Nangare .. Respondent Mr.S.S.Bhalerao for petitioner Mr.A.B.Kadam for respondent No.1. CORAM : S.C.DHARMADHIKARI, J. DATE : 15th July 2009. P.C.: 1] The petitioners are the original plaintiffs and respondent Nos. 1 and 2 in the Misc.Civil Appeal No.117 of 2008. They are aggrieved by the order dated 15th April 2008 in this Misc.Civil Appeal. 2] By the impugned order, the lower appellate court allowed Misc.Civil Appeal preferred by the respondent original defendant No.2 and thereby reversed the order of the trial court. The trial court had granted interim injunction in favour of the petitioners on the basis that the petitioners have prima facie proved that they are in physical possession of the suit property. 2 3] While allowing Misc. Civil Appeal the lower appellate court has re- appraised and re-appreciated the documents produced only for the purpose of ascertaining whether the petitioners have proved prima facie that they are in possession of the suit land. In paras 13 to 15 of the impugned order all the Revenue Entries have been perused and, thereafter, the lower appellate court has concluded that the petitioners have not proved even prima facie that they are in possession of the suit land. In the light of this the trial court’s order, according to the lower appellate court, was unsustainable. 4] The complaint before me is that the lower appellate court has failed to appreciate that the documents would demonstrate that the respondent appellant was not in physical possession. Reliance is placed upon the sale deed and recital (Clause No.9) to urge that physical possession of the petitioners was never in dispute. This is a sale deed between the owners and the petitioners and the same confirms the possession and it is not something by which one can hold that the possession is being handed over for the first time. In such circumstances, by some revenue entries the clause could not have been brushed aside to hold that physical 3 possession is that of the respondent before this Court. For all these reasons, the order is vitiated by error apparent and can safely be termed as perverse. 5] It is not possible to agree with the learned Counsel, inasmuch as, the lower appellate court was aware of the sale deed. A copy of the sale deed has been annexed to this petition. A proper perusal of the same would indicate that the said clause does not confirm existing physical possession but would demonstrate, prima facie, that the possession is being handed over after ascertaining the boundaries on the date of the sale deed. The clause must be read in its entirety even for the prima facie purpose. It is not in dispute that the sale deed is of the year 2002. In such circumstances, reliance placed by the lower appellate court on the prior revenue entries which are from 1967-68 onwards cannot be said to be erroneous or vitiated as urged. This is only for the limited purpose and not final determination of the rights of parties to the lis. Merely because the proceedings under section 70(b) have not concluded in favour of the present respondent, yet, it cannot be said that they are disposed of finally. A revision application is till date pending. In such circumstances, after 4 holding that petitioners who are the original plaintiffs have failed to show that they are in physical possession of the suit land that trial court’s order has been reversed. 6] I do not see any reason to interfere with this interlocutory order as the discretion exercised is not demonstrated to be injudicious or arbitratory nor can the order be termed as perverse. 7] Writ petition is accordingly dismissed. However, it is clarified that all observations made by the lower appellate court and this court are tentative and prima facie and they do not confer any rights in favour of the respondents. It is neither held nor it could be held by the lower appellate court that there is any right as tenant or deemed tenant. These are matters which must be decided by the authorities under the Bombay Tenancy and Agricultural Lands Act, 1948. Therefore, the tentative and prima facie observations would not bind the trial court while deciding the suit nor the revenue authorities in disposing of the pending proceedings. No costs. (S.C.DHARMADHIKARI, J)