1 AO NO.178/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APEAL FROM ORDER NO. 178 OF 2011 (With CA/12492/2011 In AO/178/2011 ) Iliyas Naziruddin Bagwan, Age: 40 years, Occ: Agriculture, r/o Ladsawangi, Tq. & Dist. Aurangabad. ...APPELLANT VERSUS (Ori.Defendant No.3) 1. Madansing Kapurchand Pardeshi (Rajput), Age: 48 years, Occ: Agriculture R/o Jalgaon Pheran Tq. & Dist. Aurangabad. (Original Plaintiff) 2. Sayyad Saidu Sayyad Papa, Age: 50 years, Occ: Agriculture, R/o Daregaon, Tq. & Dist. Aurangabad. 3. Riyaj Ahmedkhan Bismillah Khan, Age: 25 years, Occ: Education, R/o. Azad Chowk, Tq. & Dist: Aurangabad. (Original Defendants NO.1 and 2) ...RESPONDENTS ... Mr.Adwant S.V., Advocate for APPELLANT. R/1 To 3 Served. Mr.M.R.Andhale, Adv., for R/1. Mr.Sk.Ashpak Taher Patel, Adv. For Respt.No.2. ... 2 AO NO.178/2011 CORAM : K.U. CHANDIWAL, J. Dated: November 22, 2011 ... PER COURT :- 1. Heard learned Counsel for the parties extensively. 2. Clamp of injunction by order dated 19.9.2011 by learned Extra Joint Civil Judge, Senior Division, Aurangabad, in Special Civil Suit No.48/2009, below Exh.5 is questioned by the original defendant No.3 ( appellant). 3. The substantial question of law to be formulated would be as under: " Whether the learned Judge was justified in injuncting the appellant based on the purported sale deed of respondent no.1 dated 30th Dec.,1980, without any support of collateral documents. " 4. The controversy revolves around land Gat No.29, situate at Daregaon, taluka Aurangabad. Revenue record is made available for inspection of this Court. Perusal of the record of the learned trial Judge illustrate, at no point of time, the land had the area exceeding 20 Gunthas. The holding was restricted to the said area. 3 AO NO.178/2011 However, the plaintiff, by virtue of the sale deed dated 30.12.1980, purchased from Sayyad Saidu an area of 2 acres 26 gunthas out of the said land, boundaries whereof are also mentioned in the sale deed. It is again curious, since the date of purchase, till even after mutation in the name of the appellant herein, there is no whisper from respondent no.1 to indicate that he was in open, clear and unambiguous possession as owner of the said land. Basically, respondent no.1 could not be perpetuated to claim to be in possession of 2 acres 26 gunthas of land since the land itself is restricted to 20 gunthas. 5. It follows, prima facie, that a document of indenture dated 30.12.1980 is a camouflage created in connivance with the predecessor-in- title of the appellant or, for that purpose, respondent no.3. Respondent no.3 has, by virtue of a sale deed dated 14.7.2005, purchased the land from Sayyad Saidu Sayyad Papa. Thereafter, he got his mutation entry No.306 sanctioned from the Revenue Officer, which is after following due procedure under the law. It was then, the property was conveyed to the appellant by virtue of sale deed dated 12.8.2008 by respondent No.3 Riyaz. This is substantiated by the timely mutation entry No.368 sanctioned by the Revenue Officer, following the prescribed procedure under the Maharashtra Land 4 AO NO.178/2011 Revenue Code and the Rules thereunder. It is informed, supported by mutation entry, that the appellant has raised financial assistance of Rs. 1,00,000/- ( Rs. one lac) from Marathwada Godawari Gramin Bank, branch at Ladsavangi, for which mutation entry in "Other Rights Column" is taken vide entry No.407. If respondent No.1 asserts to be in possession, it is vivid, he should have objected at all possible levels about the mutation carried out, either in the name of the appellant, or in the name of financier. However, the revenue record is permitted to swim in the name of Saidu Papa, who was shown as personally cultivating the property. If the contention that plaintiff urged to effect mutation but is not entertained, is accepted, the plaintiff ( respondent no.1 ) should not have remained in slumber, as he had legal remedy available under the Statute to make representation before the learned Tehsildar, to correct the record. No such event has been coined and accelerated to demonstrate plaintiff's right in the property. 6. The sale deed, prima facie, appears to be merely on paper, without being acted upon, at any place as a lawful owner, or in possession of the property. When the land Gat No.29 was barely 20 gunthas, by no stretch of imagination, respondent no.1 could acquire rights to the 5 AO NO.178/2011 extent of 2 acres 26 gunthas. These aspects have, unfortunately, been not considered by the learned Judge and, resultantly, the injunction is clamped against the appellant. 7. The order under challenge, in the fact- situation, is without association to the slumber demonstrated by respondent no.1 for 29 years and, based on an obsolete and remiss document, the injunction is clamped by the learned Judge. The substantial question is answered in affirmative. 8. The order below Exh.5, referred to above, is therefore, set aside. Appeal From Order is allowed in above terms. Civil Application (No.12492/2011) for stay is disposed of. 9. Heard Mr. M.R.Andhale. The observations made herein-above are prima facie in nature. The learned Judge should not get swayed away by the same at the final adjudication of the matter. (K.U. CHANDIWAL) JUDGE ... agp/178-11ao