(1) WP.1427.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1427 OF 2010 1. Shri Eknath S/o Shankar Wahul, Age : 50 years, Occu.: Agril., R/o : Pimpalgaon (Walan), Tq. Phulambri, Dist. Aurangabad 2. Shankar S/o Sakharam @ Shaliram Wahul, Age : 80 years, Occu.: Agri., R/o as above .. Petitioners VERSUS 1. Janabai W/o Kachru Khandale, Age : 55 years, Occu: Agri., R/o : Pimpalgaon (Walan), Tq. Phulambri, Dist. Aurnagabad 2. Shri Kachru S/o Chokha Khandale, Age : 46 years, Occu.: Labour, R/o : As above .. Respondents ... Mr. S.R. Deshpande, Advocate for the Petitioners Mr. A.N. Nagargoje, Advocate h/f. Mr. D.M. Mane, Advocate for the respondent no.1 None present for the respondent no.2 though served ... CORAM : V.R. KINGAONKAR, J. DATED : 9TH AUGUST, 2010 ORAL JUDGMENT:- 1. Rule. Rule made returnable forthwith and heard finally. 2. By this Petition, the petitioners impugn (2) WP.1427.2010 judgment and order rendered by learned District Judge-4, Aurangabad, in Misc. C.A. no. 259 of 2009. By the impugned judgment, the Misc.C.A. came to be allowed and the temporary injunction clamped on the respondent no.1-Janabai was vacated by dismissing the Application (Exh.5) filed in the suit (R.C.S. 61 of 2009). 3. It is not necessary to elaborately set out the rival contentions. It would suffice to mention here that the petitioners are original plaintiffs who filed the suit for perpetual injunction restraining the respondents from causing interference in their lawful possession of land gat no. 461 to the extent of 45R area as described in the claim clause of the plaint. They submitted that since about 50 years they are in actual possession of the said land. They claim to be tenants. They allege that the plaintiff no.2 had applied for mutation of the name in the cultivation column of the 7/12 record. Though a panchanama was drawn, yet his name was not recorded. They contended that the respondent no.1 alienated the (3) WP.1427.2010 suit land to the respondent no.2 on 4.7.2007 and thereafter, name of the petitioner no.2 was deleted as it appeared in the relevant column showing him as the tenant in possession. According to the respondents, the petitioners had no concern whatsoever with the suit land. It was categorically denied that they are the tenants in possession. It was also denied that the collusive entries were recorded in the 7/12 register. 4. Considering the rival contentions of the parties and the material placed on record, the trial Court allowed the temporary injunction application (Exh. 5) filed in the suit. The present respondent no.1 preferred an appeal bearing Misc. C.A. 259 of 2009. The first appellate Court allowed the appeal and de-clamped the temporary injunction. Hence, the Petition. 5. Heard learned counsel for the parties. 6. The short question which arises in this (4) WP.1427.2010 Petition is as to whether the impugned judgment of the first appellate Court is demonstratedly perverse. At the outset, let it be noted that the respondent no.1-Janabai had filed suit (R.C.S. 112 of 2008) (new) (R.C.S. 416 of 2008) (old) against the present petitioners. That suit was dismissed. The trial Court had rendered finding to the effect that the respondent no.1-Janabai could not establish her lawful possession over the suit land. The case of the respondent no.1 in that suit was that she had purchased the suit land whereas, it was contended by the petitioners that the sale transaction was unlawful because the land was in their possession as tenants. They had denied that actual possession was delivered to the respondent no.1-Janabai though sale deed was executed in her favour. They contended that it was a nominal transaction brought about on account of internal loan transaction between themselves and respondent no.1-Janabai. 7. Be that may as it is, the dismissal of the suit filed by the respondent no.1-Janabai was the (5) WP.1427.2010 material fact which was placed on record. Copy of the judgment was also filed in support of the petitioners' contention. It appears that the first appellate Court failed to consider the said judgment and findings rendered by the Civil Court in the earlier suit though the trial Court considered the same while clamping injunction by allowing the temporary injunction application (Exh.5). 8. Perusal of the first appellate Court’s judgment reveals that the previous judgment rendered by the civil Court in suit (R.C.S. 112 of 2008) is not at all referred to. It is the duty of the first appellate Court to squarely deal with all the material which is placed on record and to examine whether the findings of the trial Court are legal and proper. It is not the case that the findings of the trial Court were based on no material. The trial Court had exercised its judicial discretion which could be interferred with only when sufficient reasons were available to the first appellate Court to upset the findings on basis of the record and if (6) WP.1427.2010 the first appellate Court came to the conclusion that the discretion was used erroneously or that it was not founded on any material. In the present case, the first appellate Court did not take into account the material documents, particularly the findings of the civil Court in the earlier suit filed by the respondent no.1-Janabai. It is vaguely stated by the first appellate Court that trial Court has given undue weightage to the documents which were filed in the previous suit. It appears that the first appellate Court did not duly consider the relevant material before upsetting the findings of the trial Court. Under the circumstances, the impugned order is un-sustainable and it is necessary to remand the matter to the first appellate Court for de-novo consideration of the material and decision on merits. 9. In the result, the Petition is allowed. The impugned judgment is set aside. The matter is remitted to the first appellate Court with direction to consider all the relevant documents and the material placed on record and to render de-novo (7) WP.1427.2010 judgment by assigning valid reasons. It is made clear that the first appellate Court shall not be influenced by any observation made by this Court and that the Misc.C.A. be decided afresh on the merits thereof. Rule made absolute accordingly. The parties are at liberty to seek interim relief from the first appellate Court as may be found necessary. Petition disposed of. No costs. Sd/- [V.R. KINGAONKAR, J.] arp