1 wp 7898.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7898 OF 2011 Mohan Bandu Pawar .. Petitioner Versus Alka Vijay Rathod .. Respondent Shri R. M. Deshmukh, Advocate for the Petitioner. Shri A. S. Bajaj, Advocate for the Respondent. CORAM : S. V. GANGAPURWALA, J. DATE : 01ST DECEMBER, 2011. PER COURT : . The petitioner is the original plaintiff. The petitioner filed a suit for declaration and injunction in respect of land gat No. 194 admeasuring 3H 20R. Along with the suit the petitioner filed an application for temporary injunction. The Trial Court allowed the said application. Aggrieved thereby the defendant filed a miscellaneous civil appeal before the District Court. The District Court allowed the appeal and rejected the application for temporary injunction. The plaintiff has assailed the said order in the present writ petition. 2 wp 7898.11 2. Shri Deshmukh, the learned counsel for the petitioner submits that the plaintiff is in actual physical possession of the property and had sown mung at the time of filing of the suit and now has sown jawar crop. The learned counsel contends that the name of the petitioner was recorded after the consolidation proceeding had taken place in the year 1982-83 and since then the name of the petitioner appears as owner of the suit property. The learned counsel contends that the talathi had also conducted panchanama and recorded statements of two witnesses fortifying the case of the petitioner that the plaintiff/petitioner is in possession of the property. The father of the respondent was in service and in collusion with the talathi had recorded the name of the respondent in the 7/12 extract. The learned counsel contends that when the name of the petitioner was recorded first in point of time, in such circumstances, the case put forth by the respondent cannot be believed. The learned counsel further contends that the name of the respondent was recorded vide illegal mutation entry and same was never sanctioned. In such circumstances, the respondent cannot claim any right nor possession. The learned counsel relies on the judgment of the learned Single Judge of this Court in a case of Chandrashekhar Shankarrao Kulkarni Vs. Rahul Shikshan Prasarak Mandal reported in 2007 (2) Mh. L. J. 3 wp 7898.11 296 to buttress his submission that person who is in possession is entitled to injunction even if it is not referable to valid title. 3. Per contra Shri Bajaj, the learned counsel for the respondent submits that the name of the respondent appears in the relevant revenue record in possession column right since 1977-78 continuously and uninterruptedly. The panchanama relied by the petitioner is after the filing of the suit and without notice to the respondent. The learned counsel further contends that the District Court has taken into consideration the fact of the panchanama being drawn after the filing of the suit and the Niab Tahsildar has also considered the panchanama. 4. With the assistance of learned counsel I have gone through the judgments. At this stage this Court would not be deciding about the title of the parties. But at the stage of determination of an application U/Sec. 39 Rule 1 and 2 of the Code of Civil Procedure, the prima facie proof of possession is only required to be considered. The plaintiff has to prima facie establish his possession. It has been observed by the Court below that right since 1977-78, though the name of the petitioner appears in ownership column, still as the name of the respondent appears continuously in the possession column, since 1977-78 till date, then the presumption would arise about the possession. In such 4 wp 7898.11 circumstances, the observations made by the District Court are plausible one and cannot be said to be perverse. The judgment in a case of Chandrakant Kulkarni referred supra relied by the learned counsel for the petitioner deals with a case of perpetual injunction that is decided after the Trial and the parties have adduced their oral and documentary evidence. At this stage, the Court below has observed that the plaintiff could not prove his prima facie possession and as such rejected the application. The finding being plausible one, this Court in its jurisdiction under Article 227 of the Constitution of India would not interfere in the said discretion. The writ petition is accordingly dismissed, however, with no order as to costs. 5. Needless to state that the observations made hereinabove are prima facie in nature and the Trial Court would decide the suit on the basis of evidence adduced by the parties dehors the observations made hereinabove. Taking into account the controversy involved in the suit and that parties are related to each other, the Trial Court shall expeditiously decide the suit as pearly as possible and preferably within a period of one (1) year from today. [ S. V. GANGAPURWALA, J. ] bsb/Dec. 11