1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.59 OF 2009 WITH APPEAL FROM ORDER NO.60 OF 2009 1. Ashok S/o.Narayan Sangale, Age-55 years, Occu-Driver, R/o.Kohinoor Mill Compound, Chawl No.10, Room No.739, Naigaon, Mumbai-14 2. Sou.Alka Ashok Sangale, Age-45 years, Occu-Household, R/o.Kohinoor Mill Compound, Chawl No.10, Room No.739, Naigaon, Mumbai-14 3. Sau.Pratibha Vilas Dhas, Age-45 years, Occu-Agriculturist, 4. Vishwanath Bapusaheb Lagad, Aged-50 years, Occu-Agriculturist, Appellant Nos.3 and 4 R/o.Koalgaon, Tq.Shrigonda, Dist. Ahmednagar APPELLANTS VERSUS Dnyandeo S/o.Namdeo Sonwane, Aged-51 years, Occu-Agriculturist, R/o.Takalikadevalit, Tq.Shrigonda, Dist.Ahmednagar RESPONDENT Mr.N.C.Garud, learned counsel for appellants in both the appeals. Mr.N.V.Gaware, learned counsel for respondent in both appeals. (CORAM : A.V.POTDAR, J.) DATE : 22/03/2010 2 PER COURT : 1. Both these AO’s are arises out of the common order passed by the Civil Judge, S.D.Shrigonda, passed below Exh.5 and 7, dated 20/12/2008, and as the parties are same in both these appeals, hence both these appeals to be disposed of by way of common order. 2. Heard learned counsel for appellants as well as for respondents in both these AO’s. By consent, both these AO’s to be disposed of at the stage of admission itself. 3. Such of the facts which are necessary to consider these AO’s can be summarized as follows. It appears that respondents herein have filed suit for specific performance on the basis of affidavit cum agreement executed before the Notary on 21/08/2004, by which it is alleged by the respondents that they were put in possession of the suit land specifically described in plaint para no.1. At that time, there were certain charges about the loan obtained by appellant no.1 and 2 from the society which require to be discharged by appellant no.1 and 2. After the respondents were put in possession, they have developed the land and dig the well in that agricultural land and taken the crops since then. It appears that one notice was issued by the respondents dated 19/03/2008, as they suspect some foul play at the hands of appellant no.1 and 2 as they are attempting to alienate these properties to somebody else through Adv.Wakade, showing their willingness to perform their part of contract and requested to 3 complete the sale deed in their favour. It is alleged that after receipt of this notice, the land was alienated in favour of appellant no.3 and 4 by appellant no.1 and 2, hence filed suit for specific performance in which at Exh.5, an application for interim relief was moved for not to create third party interest in respect of the suit properties and an application was moved at Exh.7 for interim injunction, not to interfere with their possession during the pendancy of the suit. 4. It appears that the suit and the application for temporary injunction was contested by these appellants by filing common say to the application as well as common written statement to the suit. In the said written statement, it is in the form of denial about the averments made by the respondents/plaintiffs in their plaint. It appears that the suit was filed on 16/06/2008 and at that time, order to maintain status-quo was appeared to be passed by the Trial Court. After hearing both the sides, application at Exh.5, as well as Exh.7 were disposed of by common order dated 28/12/2008 and both the applications came to be allowed which orders are impugned in both these AO’s. During the course of submissions across the bar, it is urged that considering the affidavit cum agreement dated 21/08/2004, it do not bear the specific particulars about the land to be alienated under the said affidavit. There are no witnesses to this affidavit. In the premise, it is to be held that this agreement cum affidavit is sham, bogus and concocted document. According to the appellants, respondents were never put in possession of the suit land as claimed by them and on 25/05/2008, appellant no.1 and 2, who 4 are defendant no.1 and 2 before the Trial Court, have executed registered agreement of sale in favour of appellant no.3 and 4, who are defendant no.3 and 4 before the Trial Court and already they were put in possession of the suit property. In the premise, it is prayed that the registered document will prevail over the un- registered document and there can not be order of injunction against the true owner. 5. In support of contentions of the parties, parties have filed their affidavits before the Trial Court. A serious note is taken by this Court that affidavits filed by both the parties do not bear verification which is required under Order 19 Rule 3 of CPC. Law is laid down way back in the year 1970, in the matter of A.K.K.Nambiar, Vs. Union of India and another, reported in AIR 1970 SC 652, in which it is observed by the Apex Court that if the affidavit is not properly verified, it can not be admitted in evidence. It is also observed that the reasons for verification of affidavits are to enable the Court to find out which facts can be said to be proved on the affidavit evidence of rival parties. Allegations may be true to knowledge or allegations may be true to information received from persons or allegations may be based on record. The importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations. In essence verification is required to enable the Court to find out as to whether it 5 will be safe to act on such affidavit evidence. In absence of proper verification, affidavits can not be admitted in evidence. Inspite of the law laid down by the Apex Court in the terms as cited supra, even though it is noticed by this Court that not only in connection with the affidavits filed before the Trial Court, but it is also noticed that invariably, the affidavits filed in support of the cases by either parties are not supported with proper verification. In spite of directions by the Apex Court, this rule is not strictly followed, which practice require to be deprecated forthwith. 6. At this juncture, as both the parties are sailing in the same boat, the Court has not taken serious view that the affidavits are not supported by the verification in the sense even though it is disputed by the appellants that under the alleged agreement which according to them a sham, bogus and concocted document dated 21/08/2004, it was not acted upon neither to respondents were put in possession of the suit property, but the persons who have filed the affidavits. It appears that some revenue proceedings took place between appellant no.1 and 2 and respondents, and that revenue proceeding was initiated before the property was allegedly alienated by appellant no.1 and 2 in favour of appellant no.3 and 4 vide registered agreement of sale dated 25/05/2008, in the sense that as this proceeding is initiated before the alleged execution of agreement of sale in between appellant no.1 and 2 and appellant no.3 and 4 in which the statement of appellant no.1 and 2 were also recorded coupled with 6 the statement of witnesses who have filed their affidavits in support of the case made out by the respondents before the Trial Court. On the basis of this inquiry, wherein it appears that the statements recorded during that inquiry discloses that the appellant no.1 and 2 admitted the possession of respondents over the suit property before institution of the suit. Thus the stand taken by the plaintiffs/ respondents before the Trial Court that his possession under the agreement was supported by the adjoining land owner, whose statements were recorded during the inquiry conducted by the revenue authority and on that basis, in the possession claimed, name of these respondents appeared in the 7/12 extract. At this juncture, even though it is a settled principle of law that there shall not be injunction against the true owner at the hands of trespasser, considering the aspect that there is affidavit cum agreement, on that basis, the respondents were put in possession, whether can be termed as trespassers as the respondents are claiming their rights under this affidavit cum agreement. Hence certainly they can not be termed as trespassers. In the premise, the submissions that there shall not be injunction against the true owner, can not be accepted as this order was not passed in a suit for simplicitor injunction by the trespasser against the true owner, but this order is passed on the interim injunction application in the suit filed for specific performance means, the respondents are claiming some referable title. 7. Now the another point require consideration about not to create any third party interest or not to alienate the property as there are two agreements, in which rights were created by appellants no.1 and 7 2 in favour of respondents under the agreement cum affidavit dated 21/08/2004 and under the agreement dated 25/05/2008. From these material dates, the fact is clear that the agreement which is first in time by which the respondents were put in possession, then certainly their investment in that property require to be protected. In the premise, the observations of the Lower Court that the respondents have proved prima facie case to grant the interim relief, that order is well reasoned order and there is no need to interfere at the hands of this Court. In the premise, both these AO’s stands dismissed as sans any merit. No order as to costs. 8. As both the AO’s are disposed of, the R & P be sent back to the Trial Court forthwith. 9. After the order was dictated, it is requested by the counsel for appellants that the hearing of the suit before the Trial Court be expedited. As at this juncture, this Court has no idea about the pendancy of special civil suits in the Court of Civil Judge, S.D. Shrigonda, this prayer can not be granted. At the same time, the appellants are at liberty move the Trial Court to expedite the hearing of Spl.C.S.No.40/2008 and the Trial Court to take decision on this point considering the pendancy of special civil suits on his file. (A.V.POTDAR, J.) khs/MAR 2010/ao59-09