(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 11318 OF 2010 1. Naresh Rameshchandra Kankriya, Age : 27 years, Occupation : Business & Agriculture. 2. Sushilabai w/o. Rameshchandra Kankriya, Age : 61 years, Occupation : Business & Agriculture. Both R/o. Khedkarwada, Nandurbar, Taluka and District : Nandurbar. 3. Jyoti w/o. Manoj Raka, Age : 39 years, Occupation : Agriculture & Household, R/o. Netaji Nagar, Pune. 4. Suvarna w/o. Mahavir Jain, Age : 37 years, Occupation : Agriculture & Service, R/o. Shahada Kalpataru Medicals, In front of Bus Stand, Dist. Nandurbar, Now R/o. America. 5. Sushama w/o. Anand Jain, Age : 34 years, Occupation : Agriculture & Service, R/o. Virar, District : Thane, .. Petitioners Now R/o. America. (Original plaintiffs) versus (2) 1. Kantilal Bhagchand Jain, Age : 58 years, Occupation : Business. 2. Panakvar w/o. Kantilal Jain, Age : 55 years, Occupation : Household. 3. Jayesh Kantilal Jain, Age : 35 years, Occupation : Business. 4. Lalit Kantilal Jain, Age : 33 years, Occupation : Business. 5. Vijay Kantilal Jain, Age : 28 years, Occupation : Business. .. Respondents (Original All R/o. Tilak Road, Nandurbar. defendants) ....................... Mr. P.M. Shah, Senior Advocate, holding for Mr. S.P. Shah, Advocate, for the petitioners. Mr. R.R. Mantri, Advocate, for respondent nos.1 to 5. ........................ (3) CORAM : B.P. DHARMADHIKARI, J. DATE : 28TH MARCH 2011 COURT'S ORDER : 1. Heard Senior Adv. Mr. P.M. Shah, for the petitioners, and Adv. Mr. R.R. Mantri, for the respondents. 2. The petitioners / original plaintiffs have challenged the order dated 16-11-2010, passed by the learned District Judge-1, Nandurbar, in Misc. Civil Appeal No. 16/2010, thereby dismissing the appeal filed by the petitioners. The said appeal was preferred by the petitioners against the order dated 20-9-2010, passed by the learned 2nd Joint Civil Judge (Junior Division), Nandurbar, below Exhibit 5 in Regular Civil Suit No. 43/2010, thereby rejecting the application filed by the petitioners for temporary injunction to protect possession. 3. In this petition filed under Articles 226 and 227 of the Constitution of India, the plaintiffs have contended that because of various difficulties, as explained in application at Exhibit 12 before appellate court, certain vital documents could not be produced. Hence, leave to produce about 53 such documents under Order XLI Rule 27 of CPC was sought and that leave has (4) been erroneously rejected by ignoring the difficulties expressed in that exhibit. The impugned order is, therefore, urged to be suffering from non-application of mind. 4. Adv. Mr. R.R. Mantri, for the respondents / original defendants, has contended that rejection of application under Order XLI Rule 27 of CPC is not only for reasons as pointed out to this court by petitioners. He states that relevant facts and documents are briefly noticed by the appellate court and in that background, the documents attempted to be produced are also appreciated. He attempts to demonstate to this court that the documents were prima facie found to be forged or tampered and because of those findings, the appellate court then noticed that by producing subsequent documents, effort was to fill in lacunae. He contends that in limited jurisdiction available under Order XLIII Rule 1(r) of the CPC, appellate court has rightly noticed that no loss, as such, is caused to the petitioners / plaintiffs and those documents can be produced before trial court at appropriate juncture. 5. With the assistance of both the learned Counsel, I have perused the papers. Both the courts have on the basis of material produced found claim of petitioners / plaintiffs to possession incorrect. (5) 6. In so far as application under Order XLI Rule 27 of CPC is concerned, the petitioners / plaintiffs contended that documents sought to be produced before appellate court were discovered after order on Exhibit 5. His father expired suddenly in 2008 and he himself was out of station for education between 2002 to 2006 and then out of country till 2009. He was, therefore, not aware of all business transactions and documents. Similarly, his mother was also not knowing everything. He was also to be married at that time and hence all those documents could not be produced before trial court. 7. This application was opposed by the present respondents / original defendants. Reasons given by appellate court for rejection of that application can be seen in paragraphs 12, 13, 19 and 23 of its judgment. The appellate court has found that it was not the case of the petitioners / plaintiffs that inspite of due diligence, he could not secure documents when the matter was pending before trial court. The court has also found that production of those documents was not necessary to enable it to pronounce judgment. In paragraph 19 of its judgment, the appellate court has looked into the revenue records already produced by the petitioners for the period from 2006 till 2008 and noticed variance between the same on one hand and the 7/12 (6) extract issued for the year 2007-08 in favour of defendants by Talathi. It is found that if Talathi had issued two types of 7/12 extracts for the same period, giving different names of occupants and cultivators, he has committed forgery of documents. In paragraph 23, it is noticed that 7/12 extracts reveal crop of Udid and Jawar were cultivated, but the plaintiffs had produced documents to show that they had sold wheat. In paragraph 25, it has noticed stand of petitioners to conclude that there was neither pleading nor affidavit evidence to show that plaintiffs were cultivating suit land through somebody. Because of this finding, attempt to produce Naukarnama at appellate stage was found to be an effort to fill in lacunae. It has also noticed that respondent no.1 Kantilal had created some third party interest by effecting mortgage and mortgagee institution has filed the proceedings for recovery. After considering the material on record, it has rejected the appeal. This consideration is sufficient to uphold the finding of trial court in favour of respondent. Hence perusal of more documents at that stage was found not necessary. 8. While dismissing the appeal filed by the petitioners, the application under Order XLI Rule 27 is also rejected. 9. The limited scope of consideration in such appeal is (7) well known and I do not see any jurisdictional error or perversity. The petitioners / plaintiffs can very well produce the documents before trial court and seek appropriate relief. I am, therefore, not inclined to interfere in the matter in this jurisdiction. 10. In the result, the petition is dismissed. No costs. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/11318wp