1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO.335 OF 2011 (Pandurang Wasudeo Dhote vs. Nilesh Vijayrao Mate (Patil) and another) __________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Shri A.S. Chandurkar, Advocate for the petitioner. Shri C.A. Joshi, Advocate for the respondent no.1. ---------- CORAM : R.M. SAVANT, J. DATED : JUNE 27 , 2011 The above petition takes exception to the order dated 21/10/2010 passed by the learned District Judge-IV, Akola whereby the Miscellaneous Civil Appeal filed by the respondents/defendants came to be allowed and resultantly, the order of temporary injunction passed by the trial Court came to be set aside. The petitioner herein is the original plaintiff, who has filed Regular Civil Suit No. 330/2009 for declaration and injunction against 2 the respondents. The suit property is land bearing Gat No.113 situated at Yawalkhed admeasuring 7 hectares 27 R, out of which the plaintiff claims to be in possession of 80 R. Insofar as the suit property is concerned, originally the same belonged to one Wasudeo Dhote, i.e. plaintiff’s father and thereafter, the suit property came to the share of his heirs, i.e. plaintiff and his sisters. The plaintiff claimed that the said legal heirs had undivided share in the suit property. It is the case of the plaintiff that his sisters relinquished their share in his favour by the Relinquishment Deed bearing No. 907 dated 6/3/2009. Dwarkabai also relinquished her share in the suit property in favour of the petitioner. The cause for filing the suit is that the plaintiff apprehended that the respondent no.1 herein, who is a defendant in the said suit, would interfere with his possession. It was the case of the plaintiff that the respondent no.1 herein came on the suit site on 18/6/2009 and after committing trespass, abused and threatened him. The said incident was repeated. The respondent no.1 herein claims to 3 have purchased an area of 80 R in the said Gat No. 113 from the respondent no.2, who is a brother- in-law of the plaintiff. The sale deed as originally executed in favour of the respondent no.1 herein dated 6/3/2009 mentioned Gat No.114 admeasuring 84 R. However, by Correction Deed dated 2/6/2009, the said Gat No.114 was corrected as Gat No. 113 and the area was also corrected to 80 R. The plaintiff has accordingly taken objection to the mutation entries being corrected in respect of said Gat No. 113 on the basis of the said Correction Deed dated 2/6/2009. Suffice it to say that the parties are before the Revenue Authorities in respect of the said revenue entries. The plaintiff in the said suit being Regular Civil Suit No.330/2009 filed an application for temporary injunction. In support of his case for temporary injunction, the plaintiff relied upon the documents, which were listed as Exhs. 3, 21 and 34. On the other hand, the defendants relied upon documents listed as Exhs. 40, 23 and 35. The trial Court on the basis of the material on record, came to 4 the conclusion that the property in respect of which temporary injunction was sought by the plaintiff was different than the property claimed by the respondent no.1 herein as well as the area mentioned in the said Sale Deed was different than the area belonging to the plaintiff bearing Gat No.113, which was 80 R. The trial Court, therefore, granted the temporary injunction in favour of the plaintiff and restrained the respondents herein from disturbing the possession of the plaintiff in the suit field till decision in the suit. Aggrieved by the order dated 13/7/2009 passed by the trial Court, the respondents herein filed Miscellaneous Civil Appeal No.83/2009. The appellate Court on consideration of the material on record as well as the proceedings before the Revenue Authorities came to a conclusion that since the father of the plaintiff, Wasudeo Dhote, had already sold the suit land during his life time and since entries of the legal representatives taken by the Revenue Authorities vide Mutation Entry No. 470 and 554 have also been cancelled and since the plaintiff had 5 failed to produce any material to show his possession over a long period of time, i.e. 1981 to 2009, the case of the plaintiff that he was in an uninterrupted possession of the suit land could not be accepted. The first appellate Court also took into consideration the history of the sales, which took place from the year 1981, which have taken place prior to the sale being effected in favour of respondent no.1 and came to a conclusion that mention of Survey No.114 in the Sale Deed of the respondent no.1, dated 6/3/2009 was a clerical mistake in the light of the record of rights and the orders passed by the Revenue Authorities. The appellate Court, therefore, found it fit to interfere with the temporary injunction granted by the trial Court and, therefore, set it aside. Heard the learned Counsel for the parties. It was sought to be contended by Shri Chandurkar, learned Counsel for the petitioner, that even in the 7/12 extract of Survey No.113, which is appended to the Correction Deed of the respondent no.1, dated 2/6/2009, there is an entry in the name of the petitioner. It was further contended 6 that the Relinquishment Deed is a pointer to the fact that the land admeasuring 80 R was still lying with the father of the plaintiff notwithstanding the earlier sales. Per contra, Shri Joshi, learned Counsel appearing for the respondent no.1, relied upon the Sale Deeds executed in favour of the Bhiwa Bansi Bagade and Ramchandra Doma Samarth to demonstrate that no land in the said Gat No.113 was remaining with the plaintiff's father, which the plaintiff could inherit. In my view, in the teeth of the material on record, which has been adverted to by the appellate Court and also considering the fact that the plaintiff though claimed to be in possession of the suit land since 1981 till 2009, having not produced an iota of evidence in that regard, the discretion exercised by the trial Court was rightly set aside by the first appellate Court. In that view of the matter, no case for interdiction is made out. The writ petition is accordingly dismissed. However, considering the 7 fact that the suit is at the stage of evidence, in my view, it would be just and proper to expedite hearing of Regular Civil Suit No.330/2009 and the trial Court is directed to hear and decide the same latest by 30 th June 2012. JUDGE khj