{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.130 OF 2009 Sumanbai Bhagwanrao Parde APPELLANT VERSUS M/s Onkar Builders and Developers, Parbhani and others RESPONDENTS ....... Mr. S,R,Bagal, Advocate for applicant Mr. S.S.Rathi h/f Mr.P.N.Kalani, Advocate for respondent No.1 Mr.A.S.Deshmukh, Advocate for respondents No.2 and 3 ....... [CORAM : A.V.POTDAR, J.] DATE: 25 th March 2010 PER COURT: 1. By this Appeal From Order, the appellant, original plaintiff, in special civil suit No.17/2009, has assailed the order dated 15.07.2009 passed below Exhibit-5, an application for injunction. 2. Considering the fact that a very small point is involved in this Appeal From Order, by consent of all the parties, heard finally at the stage of admission. {2} 3. Before considering the submissions of the parties, it is necessary to give few facts, which gave rise to file the present appeal from order. 4. Appellant Suman has filed Special Civil Suit No. 17/2009 in the Court of CJSD, Parbhani for perpetual injunction and declaration that the sale deeds dated 17.06.2008 executed by defendants No.2 and 3 in favour of defendant No.1 and dated 05.05.2003 executed by deceased Yashwant Vaidya in favour of defendants No.2 and 3 is null and void. It is alleged that father of the plaintiff had purchased the suit property in the name of said Yashwant. The suit property is 1 Hectare 50R situated at Survey No.85/2. The original plaintiff has also sought declaration that the compromise in RCS No.87/2008 dated 15.11.2008 be declared as null and void. 5. It is the case of the plaintiff that the said property was purchased by her father Baliram in the name of said Yashwant in the year 1980 vide registered sale deed dated 07.03.1980. This was the Benami transaction. It is also alleged that during the lifetime of the father of the plaintiff, he was cultivating the land as owner and was in possession of the same. Father of the plaintiff / appellant expired in the year 2005. It is alleged by the appellant that in his lifetime, father of the appellant had orally transferred the suit property in the name of present appellant and hence since his demise, she is in occupation of the suit property as owner. {3} 6, It is alleged that as respondents No.2 and 3 started creating plots in the said property, which cased obstruction to her possession, she filed application for temporary injunction under order 39 Rule 112 vide Exhibit-5 for injunction against the respondents not to obstruct her possession as well as not to alienate the property during the pendency of the suit. The said application came to be rejected vide order dated 15.07.2009, which is impugned in the present Appeal From Order. 7. The application was contested by the respondents. According to respondent No.1, he has acquired the said property from respondents No.2 and 3 under a registered sale deed dated 17.06.2008 which was acquired by them from deceased Yashwant in the year 2003. It is further contended that since 2008, respondent No.1 is in possession of the property. 8. It is urged on behalf of the appellant that the transaction was Benami and the real owner was the father of the appellant and in his life time he had orally transferred the said property in the name of the appellant and she is enjoying the same as owner since demise of her father. It is to be considered that the appellant / plaintiff is not the sole heir of deceased Baliram. The submission that the property was orally transferred by deceased Baliram in favour of the appellant is not supported by pleadings in the plaint. On the contrary it is pleaded in the plaint that it was {4} the desire of deceased Baliram that after his demise the appellant / plaintiff to enjoy the said property and hence after his demise other heirs of Baliram have relinquished their share in favour of the appellant / plaintiff. So far as this submission is concerned, the same is not supported by any documentary evidence. In the premise it appears that the efforts made by the learned counsel for the appellant to establish nexus to the property allegedly, of the father of the appellant, is not supported by the documents. Apart from it reliance is placed on the order passed by Tahsildar, Jintoor in inquiry proceedings RTS No.113 dated 28.10.2003. On bare perusal of the said order, it appears that the stand of the appellant in respect of residential premises to which municipal house number is given, finds no support in the said order. What is noticed is that permanent cattle shed is situated in the said property. It appears that during the said inquiry, statements of adjoining land owners were recorded, whose affidavits are filed in support of the claim of the appellant. It is to be noted that the affidavits, which are filed before the trial court, are not supported by verification at all. As per ruling given by the Apex Court in the matter of “A.K.K.Nambiar V/s Union of India” reported in AIR 1970 SC 652, the affidavits without proper verification are not admissible in evidence. 9. According to learned counsel for respondents, at no point of time the appellant was able to establish her possession over the suit property then the application seeking temporary {5} injunction not to obstruct possession ought to have failed. It is further urged that as no nexus is established in respect of ownership of Baliram from whom the appellant is claiming title, the application requires to be rejected on this count also. Therefore, it is requested to dismiss the Appeal From Order. 10. Considering the order passed by Tahsildar, Jintoor in RTS proceedings No.113, it is the only document which appears to be in favour of the appellant. So far as open land is concerned, the principle “title follows possession” would apply and not “possession follows title”. As Baliram failed to establish his title in his lifetime as well as no steps appear to be taken by him in his life time then if the appellant is claiming the title and possession over the property through him, which is not established at all, then no case is made out to establish title to the property. In the premise, on all counts, the submission in respect of possession as well as title of the appellant over the property fail and no interference is required in the order dated 15.07.2009 passed by the learned trial court below Exhibit-5. 11. In the result, the Appeal From Order, which is sans merits, stands rejected summarily. [A.V.POTDAR, J.] drp/A10/ao130-09 {6} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.4220 OF 2010 IN APPEAL FROM ORDER NO.130 OF 2009 Sumanbai Bhagwanrao Parde APPELLANT VERSUS M/s Onkar Builders and Developers, Parbhani and others RESPONDENTS ....... Mr. S,R,Bagal, Advocate for applicant Mr. S.S.Rathi h/f Mr.P.N.Kalani, Advocate for respondent No.1 Mr.A.S.Deshmukh, Advocate for respondents No.2 and 3 ....... [CORAM : A.V.POTDAR, J.] DATE: 25 th March 2010 PER COURT: 1. By this application, the applicant has prayed to add respondents No.8 to 13 to appeal from order. Out of these respondents, respondents No.8 to 11 were already joined as defendants in the suit. However, respondents No.12 and 13 are not the parties before the trial court. It is alleged that some property is alienated in their favour. As respondents No.12 and 13 are not the parties to the original proceedings, learned counsel for the {7} respondents have raised objection to implede them as party respondents. 2. In the premise, the application is partly allowed. Respondents No.8 to 11 are allowed to add as party respondents in the appeal from order, however so far as the civil application in respect of respondents No.12 and 13 is concerned, the same is rejected. Amendment to be carried out during the course of the day. Civil Application stands disposed of accordingly. [A.V.POTDAR, J.] drp/A10/ao130-09 {8} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.280 OF 2010 IN APPEAL FROM ORDER NO.130 OF 2009 Sumanbai Bhagwanrao Parde APPELLANT VERSUS M/s Onkar Builders and Developers, Parbhani and others RESPONDENTS ....... Mr. S,R,Bagal, Advocate for applicant Mr. S.S.Rathi h/f Mr.P.N.Kalani, Advocate for respondent No.1 Mr.A.S.Deshmukh, Advocate for respondents No.2 and 3 ....... [CORAM : A.V.POTDAR, J.] DATE: 25 th March 2010 PER COURT: 1. As Appeal From Order No.130/2009 is dismissed, the present civil application does not survive and hence stands disposed of. [A.V.POTDAR, J.] drp/A10/ao130-09