1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.384 OF 1990 (with C.A.No.3506/1990) Date of decision:15/2/2010 For approval and signature HON'BLE MR. JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes/No. may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? Yes/No 3. Whether Their Lordships wish to see Yes/No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? Yes/No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the Yes/No. Civil Judges ? 6. Whether the case involves an important Yes/No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? (A.G. PARALIKAR) Private Secretary agp/office/384-90sa 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.384 OF 1990 Manjansaheb Walisaheb Patel, aged 80 years, occupation agriculture, r/o Andora, Taluka Ausa, District Latur. DIED, L.Rs. (1) Sk.Dastgir Manjansaheb Patel, Age 76, Occup.Agril., r/o Andora, Tal.Ausa, Dist.Latur. SINCE DECEASED, through, L.Rs. 1-A: Shaikh Sharifabee w/o Dastagir Patel, Age: 70 years, Occu. household, r/o Andora, Tq. Ausa, Dist.Latur. 1-B: Shaikh Rahimtulla s/o Dastagir Patel, age 40 years, Occu: Labour, r/o as above. 1-C: Sau.Shariyat w/o Sk.Aziz, Age 45 years, Occu. Household, r/o. Tawarajkheda, Tq. & Dist. Osmanabad. (Amended as per leave granted by this Hon'ble Court, order dated 08/05/2009 in C.A.No.2935/2008 in Second Appeal No.384/1990). (2) Sk.Ladlesaheb Manjansaheb Patel, Age 66, Occup. Agril., r/o as above. (3) Sk.Ibrahim s/o Manjansaheb Patel, age 55, Occup.Agril., r/o as above. 3 (4) Malanbi w/o Manjansaheb Patel, age 95, Occup.Household, r/o as above. (5) Motibegum w/o Yunus, age 50, Occup: Household, r/o. Kakramba Tq.Tuljapur, Dist.Osmanabad. (Amendment made as per Court's order dt.21.4.2008. ...APPELLANT (Original Plaintiff) VERSUS 1. Babu @ Abdul Aziz, s/o Dadamiya alias Abdul Wahed, aged 48 years, Occ. Govt.service, Police Constable, Osmanabad. 2. Ismail s/o Babasaheb, Aged 50 years, Occ.Agri., r/o andora, Tq.Ausa, District Latur. DIED, THROUGH L.Rs. 2-A. Ramjanbee w/o Ismail, Age: 65 years, Occu.household, r/o Andora, Tq. Ausa, Dist.Latur. 2-B. Azim s/o Ismail, Age 45 years, Occu.Agril., r/o. as above. 2-C. Mobin s/o Ismail, age 40 years, Occu.Agril., r/o as above. 4 2-D. Mujib s/o Ismail, age 30 years, Occu.Agril., r/o as above. 2-E. Wajib s/o Ismail, age 35 years, Occu.Agril., r/o as above. ...RESPONDENTS ... Mr. S.V.Gangapurwala, Adv., for the appellants. Mr. V.C.Solshe, Adv., h/f Mr. C.G.Solshe, Adv., for respondents. ... CORAM: K.U. CHANDIWAL, J. DATE :15/2/2010 *** ORAL JUDGMENT: 1. On 22.2.1991, this Court admitted the Second Appeal observing ground No.5 raises a substantial question of law. Ground No.5 of the appeal memo reads as under: "5. That both the Courts below having held that the Appellant was in possession of the disputed lands, it was wrong to dismiss the suit for injunction as against the Respondents who have not at all established any right, title or interest in any of the disputed properties. This is a substantial question of law. " 2. This is the plaintiffs Second Appeal, 5 being aggrieved by the judgment and decree dt. 13th August, 1984, passed by the learned Civil Judge, Junior Division, Ausa, in RCS No.255/1979, dismissing the suit for perpetual injunction and the judgment and decree passed by the learned Additional District Judge, Latur, in RCA No. 205/1984, confirming and upholding the judgment and decree of dismissal of trial Court. 3. It was canvassed that the defendants have obstructed in the peaceful possession and enjoyment of the plaintiff over the suit properties and, consequently, an injunction was sought. The plaintiff came with a case that his possession of the disputed lands was on the basis of agreement of lease dt.21.6.1961 having got such documents from Sajjadbi. The Courts found Sajjadbi had no title nor she had competence to lease the land to the plaintiff nor she had proprietory title to sell the same as property was purchased by Khatunbi w/o Dadamiya. The defendant no.1 is son of said Dadamiya born from said Khatunbi. The appellate Court on analysis of all the evidence found that the purported lease or the agreement of sale dt.3.7.1961 could not be held to be genuine document as the death certificate on record at Exh.72 indicated Abdul Hamid died on 30th Dec.,1957 and Khatunbi died at Latur on 6th March, 1958. However, for the document at Exh.58, the agreement of sale is 6 purported to be dt.3.7.1961. It is said that Abdul Hamid and Khatunbee along with Sajjadbee proposed to sell the disputed lands to the plaintiff. The learned appellate Court discussed and naturally correctly doubted when Abdul Hamid died on 30th Dec.,1957 and Khatunbi in the year 1958, there was no propriety, legality in the plaintiff asserting about entering into agreement of sale dt.3.7.1961 in his favour by Sajjadbi. The statement of plaintiff's relative was found to be an incorrect statement and the agreement Exh.58 was observed not to be a genuine document. It was prepared by the plaintiff to suit his claim for grabbing the disputed lands. 4. The appellate Court also found that the plaintiff asserted, defendants obstructed to the plaintiffs possession on 1st August, 1979 whereas the plaintiff's son below Exh.48 in his statement on 9th April 1984, stated on oath that the defendant obstructed possession before four years back in the month of Shravan Mas. The Court did not accept this assertion of PW Ibrahim as the Court had occasion to assess the evidence of defendant no.1 who had specifically pleaded and stated that he never obstructed plaintiffs possession over the disputed lands. The learned Court of first instance did not approve the case of the plaintiff, for interference in his 7 possession and, consequently, dismissed the same, as referred above on 13.8.1984. The first appellate Court, while discussing the facts, coupled with the evidence, found that there was no error in the order of dismissal of suit and, consequently, dismissed the appeal. 5. The substantial question of law formulated, reflected hereinbefore, will not amount to grant a decree in favour of the plaintiff, even if both the Courts have held the plaintiff to be in possession of the disputed lands. The plaintiff apparently has not come with clean hands before the Court. The reliefs under Section 53 of Specific Relief Act, and particularly in terms of Section 38 flow only based on discretion of the Court, the person who has no sanctity to maintain truthfulness of his assertion, could not claim equity and, relief based on equity could not have been granted in favour of the plaintiff. The reliefs in terms of Section 38 could also flow in the light of the provisions as indicated in Chapter II of Specific Relief Act without an obligation or out of the contract. However, as stated above, there could not be establishment of any contract by the plaintiff to seek claim in terms of Section 38(2) of the Specific Relief Act. 6. The contention of learned Counsel for 8 the appellant, unless the plaintiff is removed by following due process of law, he could not be obstructed, though is correct, being so supported by the judgment of the Apex Court in the matter of Rame Gowda Vs. M.Vardappa Naidu reported in 2004(1) SCC 769 at the same time, it is necessary for the plaintiff to establish that there was indeed such obstruction from the defendant at any time entitling the plaintiff to stress for and stake injunction. The plaintiff has miserably failed to establish such eventualities. 7. During the course of submission, one of the point was the plaintiff is in settled possession, however, it hardly matters, as the plaintiff could not establish his possession to be a settled possession, against true owner of the property, the defendant no.1 who has rights flowing from his mother, the original owner of the property, based on above referred two documents. The findings recorded by both the Courts do not require any interference. The substantial question of law formulated by this Court is answered in negative. Second Appeal is dismissed. Civil application disposed of. No costs. 9 Heard. The interim relief which was running in favour of the plaintiff by virtue of orders dt.19.10.1992, in terms of prayer clause B are extended till 3rd May, 2010. (K.U.CHANDIWAL) JUDGE ... agp/384-90sa