1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR C. A. A. NOS. 165 OF 2009 & 20 OF 2010 IN APPEAL AGAINST ORDER NO. 169 OF 2009 1. KISHOR S/O GOVINDRAO KASHIKAR AND 14 ORS R/O KASHIKAR WADA, NR. GANDHI STATUE, OLD BHANDARA RD, ITWARI, NAGPUR 2. SHOBHA WD/O VILAS SADAVARTE R/O MEHKAR, BULDHANA 3. NISHANT S/O VILAS SADAVARTE R/O MEHKAR, BULDHANA 4. AJIT S/O VILAS SADAVARTE R/O MEHKAR, BULDHANA 5. RAJASHREE W/O SURAJ MINASE MEHKAR DIST. BULDHANA 6. MADHUKAR S/O SADASHIV SADAVARTE R/O THE UNITED WESTERN BANK LTD. RAIPUR, MP 7. CHITRALEKHA WD/O SURESH MAHAJAN R/O SAKHARKHEDA, SINDKHED RAJA, BULDHANA 8. VEENA W/O KISHOR KASHIKAR R/O KASHIKAR WADA, VYANKOBA MULE RD, NR. GANDHI ST NAGPUR 9. ANURADHA W/O DR. ASHOK PATURKAR R/O SHIVAJI NAGAR, HINGOLI, PARBHANI 10. JAYMALA W/O VIJAY KASHIKAR R/O KASHIKAR WADA, VYANKOBA MULE RD, NR. GANDHI ST 2 11. SMITA W/O ARUN KASHIKAR NAGPUR RD, SUDAMPURI, WARDHA 12. SUMATI W/O AJAY MAHAJAN R/O SAKHARKHEDA, SINDKHED RAJA, BULDHANA 13. VTACHHALA WD/O SADASHIV SADAVARTE R/O NR. BALAJI MANDIR, MEHKAR, BULDHANA 14. VIJAY S/O GOVINDRAO KASHIKAR NR. GANDHI STATUE, OLD BHANDARA MOTOR STAND ITWARI, NAGPUR 15. M/S SAPTGIRI RELATORS THR. PARTNER N.K.V. TOWERS, AJANI SQ., WARDHA RD, NAGPUR .. PETITIONER/S VERSUS 1. PRABODH S/O SADASHIV SADAVARTE R/O RAMNAGAR, Office Notes, Office Memoranda of Coram, appearances, Court orders or directions and Registrar's orders Court's or Judge's Order Shri S. P. Bhandarkar Adv for appellants. Shri P. S. Sadavarte Adv in person. CORAM: K. U. CHANDIWAL J. Dated: 17 th JUNE, 2010. . Regular Civil Suit No. 69 of 2005 was accompanied with Ex. 4 seeking injunction against the defendant. Learned 5th Joint Civil Judge Senior Division Nagpur by order dated 17.07.2009 3 allowed the application, thereby restrained to defendant no.15 from entering on the suit property or from carrying out any other operation on the same as per the transaction made with him by defendant No.10 and defendants 1 to 5 till the decision of the suit. The defendants 1 to 15 were also restrained from disturbing the possession of the plaintiff over the suit property till decision of the suit. This order is questioned by the defendants in Appeal Against Order. 2. Extensive submissions were made initially leading to the documents then dissecting the documents to suit purpose of individual claim and ultimately the learned counsel Shri Sadavarte, party in person, made heart touching submissions to narrate his family background taking to family history from 1936 to 1948 disclosing that his father was most unlucky person who expired in the year 1985, could not attain dreams in his life. Party in person, angrily criticized the defendants, his relations and particularly the brother defendant no.14 who is a practicing Advocate, making allegations of fraudulent activities and even at one stage crossing the limits of maintaining decorum. Party in person lost the sight that Advocate who has been personally criticized has no voice to address, 4 he being not a party to litigation. In the light of such events there should have been certain self imposed discipline which unfortunately is lacking. There cannot be a quarrel on the history narrated by the plaintiff, he having faught throughout his life to earn a good livelihood to make his family to stand to the credit and worthy in the society. However, Court has to confine to the settled parameters within four corners of law. 3. The refusal for settlement on the part of the defendants need not be questioned as this Court is not called upon to do so. 4. The fact remains by virtue of sale deed in favour of Vilas, the brother of the plaintiff and Kishor Kashikar the defendant No.1, there was purchase of property land Gat No. 96 on 06.08.1982. After the purchase as per the revenue rules mutation was effected in favour of the purchasers after the mutation application was made. Even after the death of Vilas, application to revenue authorities or the affidavit were indeed signed, given and prosecuted by the plaintiff for and on behalf of either Vilas or Kishor. The plaintiff asserts the purchase of the property dated 06.08.1982 (suit property) was initially by his funds in the name of his brother Vilas and 5 defendant no.1 Kishor. However, subsequently, Kishor shelved his share by promptly making payment which plaintiff has acknowledged in the plaint. Plaintiff has not disputed that Kishor defendant no.1 has half share in the suit property. 5. Plaintiff asserts to be in possession of entire property. This assertion of the plaintiff is against the document on record. He is taking the Court to the agreement of sale prior to the sale deed dated 06.08.1982 which itself will not be acceptable at this stage to construe for plaintiffs possession. It is for the plaintiff to independently deal with the same. The fact regarding mutation entry in favour of Vilas and Kishor (defendant no.1) demonstrate their peaceful possession over the suit property. Payment of land revenue on some occasion by the plaintiff by itself will not demonstrate that he has actual physical possession over the suit property. 6. The checkered family history narrated by the plaintiff need not be more influenced, as the fact remains even if there was a family settlement dated 21.05.2003 whereby the rights in the agricultural field till 2003 to the extent of half share for the price or 6 consideration vests in the plaintiff. However the said document primarily is silent about the share of defendant no.1. Plaintiff was fair enough during the course of his repeated submissions that indeed the defendant no.1 has a share in the property with which he has nothing to do. Plaintiff submits that defendant no.1 is an honest person and if he mediates in the controversy the plaintiff blankly will accept the same. Good wisdom shown by the plaintiff to be shared by the parties litigating in the court. Considering their blood relations and on going feud and well placed financial condition this Court need not further travel and traversed to this situation. 7. It was pointed out by the learned counsel for the appellant that the plaintiff has no proximity with the suit property. Validity of the sale deed is exemplified by the plaintiff which transaction is not denied by the plaintiff. I quite accept this position. 8. It is a matter of record from 1982 till 2004 that the property flowed smoothly in the name of the defendant no.1 and the deceased Vilas. It is after the death of Vilas on 23.03.2004 the 7 dispute cropped up, probably as the widow and son of of Vilas are misguided either by defendant no.10 or some body else in the family. This Court need not shift to this arena, as it more adds to disturbing features faced by party in person, though documents lean against him. 9. The revenue record and the acceptance by plaintiff support that defendant no.1 has a share in the property. 10. Assertion by the plaintiff and acceptance by the learned Judge on plaintiffs possession is certainly beyond the record which is a perversity created by the situation by the Court. The events display that the order of the learned Judge is vitiated by an error apparent on basic facts and a manifest injustice could be suffered to the rights of defendant no.1 who has nothing to do in the family feud between plaintiffs and legal representatives of Vilas and family of Madhukar or plaintiffs sisters. The observation of Apex Court in the matter of Skyline Education Institute Vs. S. L. Vaswani (2010(2) ALL MR 427) would not be applicable with force being on all together different set of facts. 8 11. Even if the family arrangement dated 21.05.2003 is to be accepted and activated upon, I find that the injunction to the share of the defendant no.1, could not have been clamped by the learned Judge. This exercise effected by the learned Judge is certainly beyond the scope of terms of Order 39 Rule 1 and 2 Civil Procedure Code and even the documents on record. 12. The discretion exercised by learned Judge was by misreading the documents. The learned Judge was swayed even by not properly reading the earlier judgment in Regular Civil Suit No. 1994 of 1993 wherein on behalf wife, plaintiff claimed injunction against the Tahsildar and desire that Vilas and Kishor being the owners of Gat No. 96 (suit property), revenue authorities to effect the mutation in their favour. Plaintiff appeared as a witness in Regular Civil Suit No. 1994 of 1993 to depose for and in prosecution of claim of Kishor and Vilas. Taking survey of all the facts, I find that clamp of absolute injunction against the defendant by the learned Judge warrants interference. Consequently the order is modified as under: Defendants 2 to 15 shall not deal alienate, develop, change the property. Injunction against defendant no.1 is vacated. The matter is expedited. Learned Judge seized with the 9 matter is expected to complete the trial within one year from Writ of Court. Civil Applications are disposed of. No costs. JUDGE svk 10 11 12