1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5449 OF 2009 Chandrakala Subhash Mhaske Versus Vijay Shrihari Pise ... Shri R.K.Temkar, Advocate for the petitioner and Shri A.V.Gavali, Advocate for respondent. ... CORAM : S.B.DESHMUKH, J. Dated : 5.1.2010 PER COURT :- 1. Heard learned counsel for the respective parties. 2. Rule. By consent, Rule made returnable forthwith. 3. Petitioner (plaintiff) had filed Regular Civil Suit No.58 of 2006 for perpetual injunction along with an application for temporary injunction - Exhibit 6. Said application was allowed on 16.9.2006 (Exhibit "D"). Said order was subjected in Misc. Civil Appeal No.117 of 2006, which came to be allowed by the first appellate Court on 26.6.2009 (Exhibit "E"). 4. Learned counsel for the respective parties have pointed out the 2 order of the trial court and observations of the first appellate Court. Copy of the plaint is on record at Exhibit "B". Description of the property is given in the plaint. Copy of the written statement is on record (Exhibit "C"). Learned counsel for the petitioner pointed out paragraph No.3 of the written statement and submitted that the defendant, in this paragraph, has in clear terms admitted the execution of document in question dt.30.7.2002. It has been contended by the defendant that the document in question (conditional sale) dt.30.7.2007 has been executed by the defendant and this contention raised by the plaintiff in the limited sense is admitted and accepted by the defendant. In this paragraph, further, it has been pleaded that the claim of the plaintiff that the possession of the suit property was handed over to him by the defendant is false and not accepted or not admitted by the defendant. 5. Learned Advocate for the respondent (defendant) also points out pleadings raised in paragraph Nos.7 and 8 of the written statement. In paragraph No.7, it has been pleaded that the nature of the transaction in question is in fact money lending transaction. Amount of Rs.1,00,000/- has been deposited in the bank account of grand father of plaintiff by the defendant. The plaintiff at that time admitted the re-execution of the document, release of the property from the alleged mortgage and/or returning the property by the registered document in favour of the defendant however it could not be materialised. 6. I have referred to the pleadings only for the limited purpose. The issue of temporary injunction has been considered by the trail court. 3 Said order has been upset by the first appellate Court. The document in question is on record at Exhibit "A". It is a registered deed titled as "Conditional Sale Deed". This document, at the outset and in paragraph No.1 of the plaint, after giving description of the property, shows that possession of the property was handed over to the plaintiff. Apart from this document, some other documents have been filed in the trial Court. Learned counsel appearing for respondent submits that despite execution of this document, possession of the suit property remained all along with the defendant. In other words, according to defendants, he never parted with possession of the suit property and thus, the defendant claims that defendant is in actual and physical possession of the suit property and the first appellate Court justifiably, according to learned counsel, has upset the order passed by the trial Court. 7. Entries in the record of rights is the matter governed by the Maharashtra Land Revenue Code, 1866. Rules regarding preparation and maintenance of Record of Rights of 1971 are relevant for the purpose. There are three Rules, namely; Rules 29, 30 and 31 in this regard. Apart from these Rules, Section 157 of the Maharashtra Land Revenue Code, 1866 makes available presumption pertaining to the correctness of the entires. At this stage, what is necessary and required to be taken into consideration is the possession of the property. The plaintiff claims that she is in possession of the property, based on the document dt.30.7.2002. It is contention of the defendant that he remained all along in possession despite execution of this document. These contentions need investigation and appreciation of 4 evidence led by the parties. Order XXXIX Rules 1 and 2 of CPC require triple test to be established by the party seeking injunction. The contentions of the parties can be considered at the time of final hearing of the suit. Once the document is executed on 30.7.2002, it is difficult to digest the submission of defendant that he remained in possession despite the registered document. Registration of the document is the matter of provisions of Indian Registration Act, 1908. There are two types of documents. Section 17 covers the documents which are required compulsory registration. Other category of documents is the documents not required compulsory registration. These documents are listed in Section 18. Deed of sale is a document which requires registration before the Registering Authority. In the case on hand, document is titled as conditional sale deed. At this stage, I am not recording any finding on the nature of the document since the parties have to lead evidence on that point. All that I am mentioning in this order is that the execution of the document placed on record dt.30.7.2002 has been admitted by the defendant is a registered document. 8. Grant of injunction is a matter of discretion governed by Order XXXIX Rules 1 and 2 of CPC. The trial Court has exercised judicial discretion which can be upset by the first appellate Court based on the material on record and/or illegalities committed by the trial Court. From the order passed by the first appellate Court, I am of the view that the first appellate Court did not exercise the judicial discretion in view of Order XXXIX Rules 1 and 2 of CPC. The order passed by the first appellate Court requires to be quashed and set aside Suit, however, needs to be directed to be disposed of 5 expeditiously by the end of 31.12.2010. It is made clear that these are the observations based on the material available before this Court and in view of the provisions laid down under Order XXXIX Rules 1 and 2 of CPC. This Court has not recorded any finding especially as regards the nature of the transaction. This Court has not recorded any finding on the plea of the defendant in relation to the nature of the transaction i.e. money lending transaction or otherwise. In other words, the observations in this order shall not weigh the learned trial Judge while deciding the suit on merits in accordance with the evidence and provisions of law. 9. In the result, Writ Petition is allowed in above terms. The order passed by the first appellate Court is quashed and set aside. The order passed by the trial Court is restored. Hearing of the suit is expedited and the trial Court is directed to decide the same on merits on/or before 31.12.2010. Parties through their counsel, undertake to cooperate the trial Court in expeditious disposal of the suit. 10. Rule made absolute accordingly. No order as to costs. (S.B.DESHMUKH, J.) ... akl