cas1024-04.sxw 1 spb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 1024 OF 2004 IN SECOND APPEAL NO. 872 OF 2004 Shri Mahiboob H. Mujawar ... Applicant. V/s. Shri Subhash D. Dhanave & others. ... Respondents. --- Mr. Macchindra Patil for the Applicant. Mr. Arjun Patil for Respondent No.1 Mr. R.S. Alange for Respondent Nos. 2(i) to 2(iii). --- CORAM:- G.S. GODBOLE, J. DATED :- 22nd SEPTEMBER, 2011. P.C. : 1 Heard Mr. Macchindra Patil, Advocate for the Applicant, Mr. Arjun Patil for the Respondent No.1 and Mr. R.S. Alange for Respondent Nos. 2(i) to 2(iii) at length. 2 The Second Appeal is filed by the original Plaintiff in RCS No. 193 of 1988 which was a suit for declaration, injunction and partition and separate possession. The declaration which was sought was in respect of cas1024-04.sxw 2 the Sale Deed dated 9.2.1987 executed by the Defendant No. 1 in favour of Defendant No.2 to the extent of 4 Hector, 44 Ares from Gat No. 275/B. The plaint proceeded on the basis that the lands in question were allegedly originally owned by the grand-father of the Plaintiff, late Appanna Mujawar. The lands had been allotted on annual tenure basis. Appanna died 40 years prior to the filing of the Plaint, leaving behind two sons viz. Babubhai, father of the Respondent No.1, and Husain, father of the Plaintiff. It is further stated that in view of the family arrangement, the father of the Plaintiff was allegedly cultivating the southern one- half portion of the entire land; whereas Bapubhai was cultivating northern one -half portion of the entire land and when the name of the of Bapubhai was entered in to the revenue record, he was minor. This case was disputed by the Defendants. The Defendants claim exclusive possession. Defendant No.2 claimed ownership through Defendant No.1 under the Sale Deed dated 9.2.1987. Pending trial, the Court Commissioner was appointed who submitted his report at Exh. 125. The Trial Court decreed the suit and granted decree of declaration and permanent injunction and partition. Reg. Civil Appeal No. 476 of 1999 filed by the original Defendant No.2 has been allowed by the learned District Judge, Solapur on 17.2.2004 against which the Second Appeal is filed and is admitted. By cas1024-04.sxw 3 this Civil Application an injunction is prayed for against Respondent Nos. 1 to 6. 3 Mr. Macchindra Patil submitted that the land in question was an Inam Land, which was granted to the forefathers of the Plaintiff and Defendant No.1 by Emperor- Aurangajeb for giving some services for tomb of Begum at Begampur and he relied upon observations made by the Trial Court in its Judgment. On the other hand, the learned Advocate for the Respondents relied upon the findings recorded by the learned District Judge as also ancient revenue record which was produced at Exhs. 66 and 108 which indicate that the land in question was earlier a Forest Land and had been allotted to deceased Bapubhai Appansaheb Mujawar for cultivation on yearly basis on 27.06.1909 and since thereafter, also. Thereafter, name of Defendant No.1 has been entered as occupant of the said land. 4 I have carefully considered the rival submissions and the available record. The learned District Judge has recorded a prima facie finding that the averments made in the Plaint were vague and though a plea of land being the Inam Land had been raised, merely on the basis of the stray admission in the cross examination of the Defendant No.1, in the face of cas1024-04.sxw 4 the documentary evidence, showing that the land was in fact granted on yearly cultivation basis in the year 1909, it was impossible to hold that the land was a Inam Land. Even report of the Court Commissioner relied upon by the Plaintiff does not indicate existence of the house of the Plaintiff which was allegedly in existence in the suit land. Not a single entry in the revenue record supports the plea of the Plaintiff regarding possession. 5 In the circumstances, the injunction which has been claimed by the Plaintiff in respect of the southern portion, admeasuring 35 acres which was the suit property from obstructing his alleged possession cannot be granted. However, the property will have to be protected to ensure that if there is any further alienation of the suit property, the same will be subject to the final outcome of the present Second Appeal and for that purpose appropriate orders will have to be passed. Hence, I pass following order : i Civil Application No. 1024 of 2004 is rejected. It is, however, directed that if any of the Respondents deal with or alienate any portion of the suit property in any manner, the Respondents shall incorporate a clause regarding pendency of cas1024-04.sxw 5 the Second Appeal in the document which may be executed by them and within a period of one month from the execution of such document, the same may be forwarded to the Plaintiff for his information. ii Rule is discharged with no order as to costs. [G.S. GODBOLE, J.]