1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No. 541 OF 2010 WITH CIVIL APPLICATION No. 11774 OF 2010 Jagannath Kisan Aware .. APPELLANT VERSUS Laxman Kashinath Kusalkar & others .. RESPONDENTS ... Shri Mukul Kulkarni, Advocate h/f Shri P.V. Barde, Advocate for the appellant Shri H.D. Deshmukh, Advocate for the respondent No. 1 CORAM : S.V. GANGAPURWALA, J. DATE : 23rd SEPTEMBER, 2010. PER COURT: Heard, Shri Mukul Kulkarni, learned Counsel h/f for Shri Barde, learned Counsel for the appellant and Shri H.D. Deshmukh, learned Counsel for the respondent No. 1. 2. The present appellant is the original plaintiff, has filed suit for simplictor injunction, against the present respondent, claiming that he is the owner and possessor of land bearing Gut No. 259/4, admeasuring 1 Hector 2 41 Are, as the same was allotted as a new tenure. It is the case of the plaintiff that he was in need of money, as such, on 31st of August 1982 has executed a nominal agreement of sale, in the name of defendant No. 3. Thereafter, the defendant No. 1 fraudulently got the lease-deed executed in the name of defendant No. 2 on 20th July, 1984. According to the plaintiff, the said lease-deed was got executed by fraud, and no possession was delivered pursuant to the said lease-deed, and as such, the plaintiff is still in possession of the suit property. The Trial Court decreed the suit of the plaintiff. The defendants resisted the said suit. It was claimed by the defendant Nos. 1 & 2 that defendant No. 2 was in possession of the land pursuant to the registered lease-deed. The defendant No. 3 filed a counter-claim seeking specific performance, pursuant to the agreement of sale, dated 31st August, 1982. The Trial Court, decreed the suit of the plaintiff and dismissed the counter-claim. The defendants preferred an appeal against the decree passed by the Court below, decreeing the suit of the plaintiff, so also, dismissing the counter claim of the 3 defendant No 3. 3. The Lower Appellate Court allowed the appeal filed by defendant Nos. 1 & 2. However, dismissed the counter claim. The plaintiff has assailed the Judgment of the Lower Appellate Court, allowing the appeal, filed by the defendants. 4. Shri Mukul Kulkarni, the learned Counsel for the appellant, strenuously contended that the Appellate Court while reversing the finding of fact recorded by the Trial Court, has not considered the reasoning given by the Trial Court. The Trial Court, while appreciating the evidence of DW-2, has specifically observed that the column No. 5 of the extract maintained by the Sugar Factory, where the sugarcane was said to be supplied, does not spell out that the sugarcane that was supplied was cultivated in the suit land. In some of the extract, the column was blank. Whereas, in some other extracts, the column mentions some other agricultural lands. According to the learned Counsel, the Lower Appellate Court has not considered this anomaly 4 and committed an error in dismissing the suit. Shri Mukul Kulkarni, learned Counsel for the appellant further contended that since the year 1991-92, the name of the plaintiff is recorded in possession column, after deleting the name of defendant No. 2. The defendants have not challenged the said mutation entry, which has presumptive value, as far as possession is concerned. Shri Mulkul Kulkarni, learned Counsel for the appellant, further contended that the point No. 1 for determination which has framed and answered by the lower Appellate Court if perused, then it is seen that the lower Appellate Court has even observed that the plaintiff does not have title over the property. 5. With the assistance of the learned Counsel for the respective parties, I have gone through the Judgment passed by both the Courts. 6. The fact that the registered lease-deed was executed is not disputed. The plaintiff’s case is that the registered lease-deed is got executed by fraud and no relief is claimed by the 5 plaintiff seeking any declaration to that effect. 7. Further, pursuant to the said registered lease-deed, the name of defendant No. 2 was incorporated in revenue record, and it continued for about 5 to 6 years. Thereafter, in the year 1991-92, the name of defendant No. 2 was deleted and plaintiff’s name was incorporated. The Lower Appellate Court has observed that while deleting the name of defendant No. 2, the procedure as laid down under the Maharashtra Land Revenue Code was not followed. In such circumstances, the said mutation entry would not have any presumptive value. 8. The registered instrument, recites about the delivery of possession and the said registered instrument is not challenged and the plaintiff has not adduced any evidence to show actual /physical possession except the mutation entry. In such circumstances, it could not have been believed that the plaintiff is in possession of the suit property. Moreover, as per Section 41(h), an injunction cannot be granted when the 6 equally efficacious relief can certainly be obtained by any mode of proceedings. The registered instrument of lease stands in favour of defendant No. 2 and the plaintiff has not claimed any relief regarding the said instrument. Even as per Section 41(h), the plaintiff would not be entitled to such relief. 9. The point No. 1 which was framed by the Lower Appellate Court reads as under : “ Whether the plaintiff is in possession of the suit property preferable to legal title?” The Lower Appellate Court decided the factum of possession. Even the defendant No. 2 is claiming as a lessee. So far as the title is concerned, it vests with the plaintiff. But as the Court found on evidence on record that the plaintiff is not in possession of the property, the plaintiff is not entitled to any relief. The Second Appeal being sans substantial question of law, stands dismissed. However, there shall be no order as to costs. 7 10. In view of the disposal of Second Appeal, the Civil Application No. 11774 of 2010 does not survive, and the same is disposed of accordingly. [S.V. GANGAPURWALA,J] SDM* 541.10FA