1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH:NAGPUR WRIT PETITION NO.5898/2010 SAU. LAXMI YENPREDDIWAR SHIKSHAN SANSTHA & ANOTHER VERSUS SHRI MAROTI GADEKAR =================================================== CORAM: SMT. VASANTI A. NAIK, J. DATE:11.1.2011. ORAL ORDER By this petition, the petitioner impugns the order passed by the trial and the first appellate court granting a temporary injunction in favour of the respondent and restraining the petitioner from making construction on the suit site. The petitioners are the original defendants. A suit was filed by the plaintiff on the ground that he was the owner and possessor of two acres of the said land which was initially owned by his grand father Bija Kunbi. It was the case of the plaintiff that the land came to his father – Nago from Bija Kunbiby succession and from Nago the plaintiff inherited the property. The defendants denied the claim of the plaintiff and also denied that the plaintiff was the owner of the suit land. It was denied by the defendant that there was a fabrication of the record and the entries recorded in favour of the defendants were false and fabricated. It was pleaded by the defendants that the suit land was 2 purchased by the defendant on 5.3.1983 by a registered sale deed and they were enjoying the suit property since then. The defendants sought for the dismissal of the suit. The trial and the first appellate court on an appreciation of the documents produced on record held that the plaintiff had made out a prima facie case and the balance of convenience was also in favour of the plaintiff. The courts considered the fact that the name of the grandfather of the plaintiff was recorded in the Khasara of five years which ranges from the year 1954 to 1958. The revenue department also made some further entries in favour of the plaintiff. The courts held that the defendants had based the claim on the sale deed executed by Kaudu who in turn had purchased the land from Sanjeev Kalambekar. The courts considered the fact that the name of the Sanjiv Kalambekar was never entered into the revenue record. The courts considered the fact that the suit was filed for a declaration of the ownership of the plaintiff over the suit land and hence on a prima facie appreciation of the documents on record held that it was necessary to restrain the defendant from making the construction on the suit site. The courts held that mere entering of the name of the educational institution/defendants in the revenue record during some subsequent years would not give any right to the defendants to raise construction over the disputed land. The courts prima facie found that Sanjiv Kalambekar had right over only 27 acres of land, and had no right over the remaining 2 acres of land i.e. the suit land. 3 The courts prima facie found that Kalambekar had no right to sell the land to Kawadu and the claim of the defendant over the suit land in pursuance of the sale deed of the year 1983 was not justifiable. The courts held that great and irreparable loss would be caused to the plaintiff if the injunction was refused and in such circumstances it was necessary to restrain the defendants from making construction on the suit land, though permission was granted by the Municipal Council to the defendant to construct on the same. The orders passed by both the courts appear to be proper and do not suffer from any jurisdictional error, so as to interfere with the same in exercise of the writ jurisdiction. The writ petition therefore, fails and is dismissed with no order as to costs. * The Trial Court is, however, directed, in the facts and circumstances of the case, to decide the suit as expeditiously as possible. [* corrected as per order dated 3.2.2011] JUDGE SMP. 4