jpc 1 wp5820-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO.5820 OF 2011 Yashwant Tukarajm Dalavi ... Petitioner Versus Appasaheb Yashwant Hajam @ Jadhav and others ... Respondents Mr. G. N. Salunkhe a/w Mr. V. S. Kokitkar for the petitioner Mr. Jaydeep S. Deo for respondent Nos. 1 to 4 CORAM: R. M. SAVANT, J. DATED : 29th November, 2011 P.C. : 1. The above petition takes exception to the order dated 23rd February, 2011 passed by the learned District Judge-1, Gadhinglaj by which order the Appeal filed by the petitioner herein being Misc. Civil Appeal No. 25 of 2011 came to be rejected and consequently, the order passed by the trial Court refusing to grant temporary injunction to the plaintiff came to be confirmed. 2. The petitioner, who is the original plaintiff, has filed a suit being Regular Civil Suit No. 183 of 2009 for permanent injunction in respect of a land Survey No. 302 Hissa No. 2A, admeasuring 78 R situated at Badyachiwadi, Taluka Gadhinglaj Dist. Kolhapur. In so far as the suit property is concerned, the father of the plaintiff one Tukaram jpc 2 wp5820-11.sxw Dhondi-Dalvi was the protected tenant and in whose favour a 32M Certificate was issued on 9th January, 1965 under the Bombay Tenancy & Agricultural Land Act. On the basis of the said certificate, mutation entry came to be effected in favour of the father of the plaintiff. The father of the respondents herein, who are the original defendants had lent an amount of Rs.100/- to the father of the plaintiff, for the security of which, according to the plaintiff, conditional mortgage was executed. It is the case of the plaintiff that on 3rd May, 1967, the father of the plaintiff repaid the amount of Rs.100/-. It was further the case of the plaintiff that the suit property was never delivered to the defendants though the mortgage deed was executed and the father of the plaintiff continued to cultivate the suit property. The said suit was filed on the ground that when the plaintiff went to carry out some agricultural work in the suit property, the defendants obstructed him and hence a permanent injunction restraining the defendant form disturbing of the plaintiff in respect of the suit property was prayed for in the said suit. In the said suit, an application for temporary injunction Exh.5 came to be filed by the plaintiff whereas, the defendants filed application Exh. 27 for protecting their possession. On the basis of said material on record, both the applications were rejected by the trial court. The trial court observed that in view of Section 43 of the B.T.A.L Act, prior permission of the Collector ought to have been obtained by the plaintiff jpc 3 wp5820-11.sxw prior to creating the mortgage in favour of the defendants and such permission having not been obtained, the mortgage was illegal. The trial court held that in so far as the possession is concerned, the same is in dispute and the parties would have to prove the same by adducing evidence in the trial. 3. Aggrieved by the order dated 14th June, 2010, passed by the trial Court on Exh.5 and 27, the plaintiff filed an Appeal assailing the order in so far as Exh.5 is concerned. The said Appeal has been dismissed by the impugned order dated 23nd February, 2011. The gist of the reasoning, as can be seen from the impugned order of the First Appellate Court, is that admittedly the father of the plaintiff has created the mortgage deed in favour of the father of the defendants and recitals of the said mortgage deed point out that the possession was handed over. After the said mortgage, mutation entry was effected in the name of the father of defendants on 3rd January, 1968. Since the change was effected in the year 1982, the First Appellate Court was of the view that why change was effected in the revenue record in the year 1982 was not clear and it would be a matter of evidence. The First Appellate Court also took into consideration the circumstances wherein the son of the plaintiff had executed an agreement for sale on 1st August, 2008, wherein he has stated that the possession of the land in jpc 4 wp5820-11.sxw question lies on the defendants. The First Appellate Court was of the view that being an actual possession stands in contradistinction to the right to possess the property and considering the facts of the present case, the First Appellate Court was of the view that though the plaintiff has failed to prove his possession, the defendants have proved theirs, and that the trial court has erred by not recording finding on the aspect of possession. 4. Having considered the order passed by the First Appellate Court and the reasons mentioned therein for upsetting the order passed by the trial Court, in my view, the exercise of jurisdiction by the First Appellate court, in the context of the order passed by the trial Court, cannot be faulted with. In that view of the matter, no case for interdiction is made out. Writ petition is accordingly dismissed. However, hearing of the Regular Civil Suit No. 183 of 2009 is expedited and is directed to be disposed of by 31st of December, 2012. Needless to state that the said suit would be tried on its own merit and in accordance with law, uninfluenced by the earlier orders as well as the instant order. (R. M. SAVANT, J.)