1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 2016 OF 2009 *** Shrikant Mahadeo Hajare Versus Sujeet Annasaheb Hajare and others *** 1. Heard learned counsel for the parties. 2. Rule, made returnable forthwith, heard finally by consent of the parties. 3. Petitioner/ original plaintiff challenges the order passed by the learned District Judge-2, Osmanabad dated 5th March, 2009 in M.C.A. No.84 of 2008. 4. It is not in dispute that the Petitioner/ plaintiff filed Regular Civil Suit No.234 of 2008 in the court of learned Civil Judge, Junior Division, Paranda, district Osmanabad. Copy of the plaint is on record Annexure-B. It is a suit for declaration of ownership and perpetual injunction. In the suit, there are around five defendants, who are respondents in the present petition. Plaintiff is the petitioner. This suit appears to have been filed by the plaintiff on 29th July, 2008. Description of the suit property is given in the plaint itself. This suit has been followed by an application for temporary injunction. Annexure-C is the copy of the 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. application, on record. Prayer made in this application is, temporary injunction against the Respondents/ defendants for getting recorded their names in the 7/12 records of the suit property and/ or alienation of the suit property. Trial Court, after hearing the parties, allowed the application filed by the petitioner/ plaintiff by the order passed on 23rd October, 2008. Defendants were temporarily restrained from alienating the suit land by way of sell, lease, mortgage, will etc. till the disposal of the suit. This order was impugned by original defendants by filing M.C.A. No.84 of 2008. First Appellate Court heard the parties and allowed the appeal partly. Order passed by the trial Court is modified by the first Appellate Court and directed that temporary injunction granted by the trial Court for the land given by the defendants for cultivation on Batai basis (crop share basis). Thus, in other words, the order passed by the first Appellate Court has modified the order passed by the trial Court i.e. total temporary injunction for alienation is partly modified and then as the portion of the suit property which was allegedly given for cultivation by the defendants is taken out from the sweep of 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. the temporary injunction. 5. Both the learned counsel have taken me to the pleadings of the parties and order passed by the trial Court. Counsel for the Respondents also points out written statement/ reply filed by the defendant Nos.1 to 5 Annexure-G, page 37 of the compilation. In this reply and more specifically in para 6 it has been pleaded by the defendant Nos.1 to 5 that portion of the land i.e. suit property has been given on crop share basis, Batai basis to one Mr. Ankush Itkar and Santram Itkar. Referring these pleadings, according to the counsel for the Respondents, first Appellate Court has justifiably modified the order. Reason for such modification, according to the learned counsel for the respondent, is the document i.e. stamp paper of Rs.20/-. He also took me to the mutations which are part of the record. There are two mutations on record. With the assistance of learned counsel, I have seen Annexure-M. Mutation entry No.172 appears to have been certified by the competent authority on 16th May, 1987. This mutation refers to the sale transaction in favour of the petitioner. Counsel for the Respondent points out another mutation NO.352 Annexure-N. I have 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. considered this mutation also. 6. I have given due consideration to the submissions of the learned counsel for the respective parties. Indisputably, stamp of Rs.20/-, which has caused mutation 352, has not been referred by the first Appellate Court in its judgment. In this view of the matter, it is difficult to agree with the view taken by the first Appellate Court, taking into consideration the orders passed by the Court. In my view, order passed by the first Appellate Court needs to be quashed and set aside restoring the order passed by the trial Court below Exhibit-5. Suit can be directed to be decided expeditiously. 7. Writ petition is partly allowed. Order impugned is quashed and set aside. Order passed by the trial Court below Exhibit-5 dated 23rd October, 2008 stands restored. 8. Learned Judge seized with hearing of the suit, shall decide the suit expeditiously. 9. Petition is accordingly disposed. Rule made absolute in above terms. No order as to costs. 10. It is made clear that the observations, in this order, are pertaining to grant of temporary injunction within the parameters of Order 39 Rules 1 and 2 of the Code of Civil 5 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. Procedure. The learned Judge shall decide the suit in accordance with the provisions of law and considering the evidence brought on record by the parties. [S.B.DESHMUKH, J.] Dated:04/03/2010. ans/2016