1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6091 OF 2009 1 Vithal s/o Baburao Bhagat, age: 55 years, Occ: Agril; 2 Hirabai w/o Vithal Bhagat, age: 52 years, Occ: Agril; 3 Sharad s/o Vithal Bhagat, age: 22 years, Occ: Agri; All R/o Village Desur, Tq.Ashti, District Beed. Petitioners Versus 1 Jalindar s/o Shamrao Talekar, age: 55 years, Occ: Agri., R/o Village Deolali, Tq.Ashti, District Beed. 2 Balu s/o Vithal Bhagat, age: 24 years, Occ: Agri., R/o Village Desur, Tq.Ashti, District Beed. 3 Rohidas Parbati Bhagat, (died) (The suit has been abated against him vide order on Exh.1 dated 06.03.2009) Respondents Mr.C.R.Deshpande, advocate for the petitioner. Mr.G.K.Thigale, advocate for Respondent No.1. Ms.Rashmi Hardas, advocate for Respondent No.2. CORAM: R.M.BORDE, J. DATE : 03 rd December, 2009. 2 P.C: 1 Petitioners – original defendants are challenging concurrent orders passed by the Courts below in respect of grant of temporary injunction in favour of Respondents – original plaintiffs. 2 Respondents – original plaintiffs instituted Regular Civil Suit No. 403/2008 claiming decree of perpetual injunction in respect of landed property situate at village Deolali, Tq.Ashti, District Beed. According to plaintiff, he is a retired military personnel and was allotted disputed land by the State Government vide order dated 08.05.1985. According to plaintiff, he received possession through Circle Inspector on 22.06.1985. His name was mutated as per mutation entry no.485 on 28.06.1985. Possession receipt was also got executed by revenue officials on 05.07.1985 as a token of delivery of possession in favour of plaintiff. Plaintiff claims that since then he is in peaceful possession of the suit land. However, defendants, having no concern with the property, are trying to disturb his possession. It is the contention of plaintiff that one Dilip Dhonde is also a retired military personnel, who is also one of the allottees of Government land out of disputed survey number. However, he has illegally executed sale deed in favour of defendant no.1 and others. Defendants are trying to take disadvantage of the sale deed got executed illegally by them and also are desirous of securing the property belonging to the plaintiff by illegal means, are trying to disturb possession of the plaintiff. Plaintiff, as such, approached the Court seeking decree of perpetual injunction. Plaintiff also presented application at Exhibit-5 claiming temporary injunction restraining defendants from disturbing his possession. 3 3 Defendants appeared and resisted suit by filing written statement. Defendants have controverted the adverse allegations made by the plaintiff in plaint. According to them, the property originally belongs to one Radhakrishna Sheshadri Joshi and after his demise, said property devolved upon his three sons. Defendants contend that they have purchased suit property from the sons of original owner by getting sale deed executed on 06.09.1982. Mutation entry has been sanctioned by the revenue officials bearing No.411 in the year 1982. Defendants contend that they have also purchased part of the property from one of the allottees i.e. Dilip Dhonde after securing permission from revenue authorities. Defendants contend that there is no case made out for claiming order of injunction against them, as such, application for temporary injunction be rejected. 4 The trial Court, after considering all relevant aspects, was convinced as regards case put up by the plaintiff and as such, while allowing the application tendered by plaintiff at Exhibit-5, clamped order of injunction against defendants/petitioners herein restraining them from disturbing possession of the plaintiff over suit property. 5 Defendants, being aggrieved by the order passed by trial Court, approached the appellate Court by presenting Misc. Civil Appeal No. 66/2008. Appeal came to be heard and disposed of by District Judge-1, Beed, who was pleased to dismiss same thereby confirming the order passed by trial Court below Exhibit-5. 6 I have perused orders passed by both the Courts below and heard arguments advanced by learned Counsel for respective parties. 4 7 Shri C.R.Deshpande, learned Counsel appearing for petitioners, has vehemently contended that the first appellate Court has not applied his mind to the record of the case and has passed the order in mechanical manner. According to him, the first appellate Court has misquoted the facts in paragraph 12 of the judgment. Learned Counsel for the petitioners has invited my attention to the contents of paragraph 12 of the judgment, wherein it is noted by the first appellate Court: “The defendants alleged to have purchased suit land from one Nivrutti Dhonde but said Nivrutti Dhonde got land as surplus land being retired military personnel. There is nothing on record to show that said Dilip Dhonde got permission for selling the suit land. The said sale deed is of the year 1999 whereas all the documents of ownership and possession filed by the plaintiff show his ownership and possession from the year 1985. Thus, there is documentary evidence on record to show that the suit land was allotted to plaintiff and it is in his lawful possession.” 8 It is contended that it is not the contention of either of the parties that the suit land is purchased from Nivrutti Dhonde. The contention of defendants is that suit land is purchased from legal heirs of deceased Radhakrishna Sheshadri Joshi in the year 1982. Some portion, which is not part of the suit property, is purchased after securing proper permission by the defendants. According to learned Counsel for petitioners, the first appellate Court has misdirected itself and recorded erroneous findings. The findings recorded by the first appellate Court are without application of mind. 9 Although it is stated in first line of para 12 of the judgment that suit land is purchased from Nivrutti Dhonde by defendants, in the same 5 paragraph, it is noted by the first appellate Court, that: “The defendants have no document except one sale deed. The said sale deed also shows plaintiff’s land surrounding the land which defendants alleged to have purchased from Nivrutti Dhonde.” 10 Thus, the word “suit” land appearing in first sentence of paragraph no.12, appears to be out of place. In paragraph no.11 of the judgment, the first appellate Court has referred to the documents placed on record by the plaintiff and on consideration of the documents, the first appellate Court has recorded a finding that the plaintiff has established his case. On perusal of the judgment delivered by the first appellate Court, inference cannot be drawn that the first appellate Court has misdirected itself in appreciating the evidence placed on record. Merely because one word noted in the first sentence of paragraph no.12 appears to be out of place, is not sufficient to draw an inference that the whole judgment is without application of mind. 11 In this view of the matter, in my opinion, no case is made out for exercise of extraordinary jurisdiction under Article 227 of Constitution of India. 12 Writ Petition stands rejected. (R.M.BORDE) JUDGE ******* adb/wp609109