Meena Anantlal Palange & Ors. vs Usha Tanaji Jadhav & Ors.

Rule. Rule made returnable forthwith. With consent of parties, matter is taken up for final hearing at admission stage.

The present Writ Petition takes exception to order dated 18.10.2024 passed by District Court, Satara in Miscellaneous Civil Appeal No.93/2023, by which District Judge allowed Appeal filed by respondents and set aside order of temporary injunction passed in their favour in Regular Civil Suit No.247/2023.

In short factual aspects relevant for consideration of dispute in present Writ Petition can be stated as under:

The land admeasuring 560.25 sq. mtrs. out of CTS No.405/4 situated at Karanje Tarf Satara, Taluka and District Satara is subject matter of dispute. On 06.02.1986, Shri. Kanhiyalal Navandhar purchased suit land under registered sale deed from Sampat Jadhav, Tarabai Jadhav, Vimal Kirdat, Kamal Shinde and Pandit Jadhav. Eventually, mutation entries were carried. On 25.10.1999, Shri. Kanhiyalal Navandhar transferred suit property to Anantlal Palange and Nandkumar Gaikwad under registered sale deed. Eventually, mutation was effected. The plaintiffs are claiming through Anantlal Palange.

The Regular Civil Suit No.675/1990 was filed by respondents seeking decree of partition and separate possession in respect of suit properties. Pertinently, Shri. Kanhiyalal Navandhar/purchaser of property was not made party to suit. The suit was decreed. Eventually, Regular Darkhast No.235/1995 was filed. The decree was transmitted under Section 54 to District Collector. The Tahsildar prepared chart for partition of property. Eventually, mutation entries were taken and panchanama regarding delivery of possession has been prepared on 24.02.2023.

The petitioners noticed Mutation Entry No.46215 recorded in pursuance to decree in Regular Civil Suit No.675/1990. Immediately they took out necessary documents and filed Regular Civil Suit No.247/2023 seeking relief of declaration and injunction against defendants. In that suit they filed application for grant of temporary injunction below Exhibit-5. The Trial Court allowed application vide order dated 31.07.2023 and restrained defendants from obstructing or interfering in peaceful possession of plaintiffs. The aforesaid order was challenged before District Judge, Satara in Miscellaneous Civil appeal No.92/203, which came to be allowed, thereby setting aside interim injunction granted in favour of petitioners.

Mr. Nikhil Wadikar, learned Advocate appearing for petitioners would submit that petitioners/plaintiffs have derived their title and possession over suit property through Mr. Kanhiyalal Navandhar who acquired ownership on the basis of sale deed dated 06.02.1986 executed by family members of defendants. The Regular Civil Suit No.675/1990 was filed for partition and separate possession by respondents without impleading Shri. Kanhiyalal Navandhar or subsequent purchasers as party. The sale deed dated 30.05.1985 or subsequent sale deeds were not challenged in suit nor any reference in this regard was made in suit, although aforesaid transactions were reflected in record of rights. The decree passed behind back of petitioners or their predecessors in title was put to execution in Regular Darkhast No.235/1995, eventually in year 2023 mutation entries were effected depicting delivery of possession in pursuance to decree in suit of 1990. He would submit that there is nothing on record to show that long standing possession of petitioners/plaintiffs was lawfully taken away or petitioners’ ownership or possession over suit property was disturbed. The Trial Court had rightly considered aforesaid aspects and granted temporary injunction protecting possession of petitioners. However, in Appeal, District Judge set aside injunction order on erroneous counts without appreciating factual and legal aspects of matter.

Per contra, Mr. Kulkarni, learned Advocate appearing for respondents supports impugned order. He would submit that once possession is delivered in favour of respondents in pursuance to decree passed by Court and panchanama to that effect is available on record, petitioners cannot assert their possession. The contention of petitioners can be scrutinized during course of trial. However, respondents, who are put into lawful possession by process of law cannot be injuncted.

Having considered submissions advanced by learned Advocates appearing for respective parties and on perusal of material tendered into service, apparently suit land was transferred in name of Shri. Kanhiyalal Navandhar under registered sale deed dated 06.02.1986. The mutation record shows ownership and possession of Shri. Kanhiyalal Navandhar from date of sale deed. In that view of matter, without seeking declaration in respect of sale deed or raising challenge to validity of sale deed or adding purchaser as party, if decree for partition and separate possession is passed in subsequent suit, it would be ineffective so far as transaction under sale deed of 1985.

In year 2023 in pursuance to execution of partition decree passed in suit of 1990, defendants are shown to have acquired possession. The mutation record clearly depicts that since 1985 onwards ownership of suit property was transferred to Shri. Kanhiyalal Navandhar and subsequently he effected transfers in favour of different persons like petitioners/plaintiffs. The plaintiffs are claiming title being purchasers from Shri. Kanhiyalal Navandhar i.e. predecessors in title. Except Mutation Entry No.46215 dated 13.03.2023, there is nothing on record to show that possession of land was transferred to defendants. Apparently, ownership of plaintiffs remained intact in absence of challenge to their title.

Mr. Kulkarni, learned Advocate appearing for respondents heavily relies upon panchanama regarding execution of partition decree and delivery of possession in favour of respondents. However, when suit itself was instituted after transfer of property in favour of Shri. Kanhiyalal Navandhar, without raising challenge to transfer of land and without adding purchasers as party, execution of decree passed in suit would not affect ownership and settled possession of petitioners/plaintiffs. The Trial Court has rightly appreciated aforesaid aspects of matter and passed order of temporary injunction in favour of petitioners. The Appellate Court simply relying upon mutation entry and so called delivery of possession in deference to Regular Darkhast No.235/1995, set aside well reasoned order passed by Trial Court. Apparently, Appellate Court exceeded jurisdiction while setting aside reasoned order while exercising jurisdiction under Order 39 Rule 1 of Code of Civil Procedure.

It is trite that, appellate jurisdiction against order can be sparingly used as observed by Supreme Court in case of Wander Ltd. And Anr. Vs. Antox India P. Ltd.^{11.1990 SCC (Suppl.) 727.}.

In result, Writ Petition is allowed in terms of prayer Clause (a).

Rule is made absolute in above terms.