Sau. Tarabai W/o Rajendra Mankar & Ors. vs The State Of Maharashtra & Ors.

(PER : NANDESH S. DESHPANDE, J.)

Rule. Rule is made returnable forthwith. Heard finally with the consent of the learned counsel for the parties.

The present petition is filed seeking quashing and setting aside of the judgment and order dated 12.08.2025, passed by the District Judge, Wardha, in Misc. Civil Appeal No. 22 of 2024.

The facts as can be seen from the petition are as under:

I have heard Mr. Madhur A. Deo, learned counsel for the petitioners, as also Mr. Anand Shinde, learned counsel for respondent No. 3, and Ms. M. R. Kavimandan, learned AGP for respondent Nos. 1 and 2/State.

Mr. Madhur A. Deo submits that the judgment of the appellate Court impugned herein clearly demonstrates non-application of mind and proceeds on an erroneous approach. He submits that, looking at the limited scope of interference in an appeal against an order of temporary injunction, a well-reasoned order of the trial Court ought not to have been interfered with. He further submits that, as can be seen from the order of the trial Court granting temporary injunction, the trial Court has considered all the aspects of the matter in its correct perspective and, therefore, it was not within the scope of interference of the appellate Court to disturb the well-reasoned findings. In nutshell, he submits that the judgment of the appellate Court impugned in the petition is unsustainable in law.

Per contra, Mr. Anand Shinde, learned counsel for respondent No. 3, would submit that the judgment of the appellate Court is just and proper. By taking me through the said judgment, he submits that the findings of the trial Court are shown to be perverse and, therefore, the interference in appellate jurisdiction was clearly warranted. He submits that the appellate Court has elaborately dealt with how the order of the trial Court is unsustainable and, therefore, cannot be interfered with in writ jurisdiction.

I have considered the contentions canvassed by the learned counsels for the respective parties and, with their able assistance, gone through the record. As can be seen from the factual aspect narrated supra, the fact that the application of respondent No. 3 was earlier rejected by the Tahsildar and the order was upset by the Sub-Divisional Officer is not in dispute.

In the backdrop of these facts, if the order of the civil Court granting temporary injunction is concerned, the said Court has placed emphasis on the report of the Tahsildar submitted to the S.D.O. In the said report, it was categorically mentioned that on the southern side of the survey No. 244, there was a Pandhan and it was used by the cultivators, but a Nala had formed over the said Pandhan, and therefore, it could not be used. It, therefore, follows that the existence of the Pandhan is not disputed. It is, however, stated that due to the flow of water, pits hole are formed in the Pandhan, so the said way has become unusable. In other words, even though the existence of an alternate way for respondent No. 3 is shown by the report of the Tahsildar, the only thing which, according to the Tahsildar, is stated is that the same is not usable at present.

As can be seen from paragraphs 10 and 11, the trial Court has recorded a categorical finding that even though the defendant in the suit, i.e., respondent No. 3 herein, has submitted that the Bandh which is on the eastern side of the plaintiff's field is 7 to 8 feet high, no such material has been produced to support the said plea.

It has also recorded a finding that the provisions of Section 143 of the MLR Code, 1966, clearly provide that the decision of the Tahsildar would be subject to sub-sections (4) and (5) thereof. Sub-section (4) provides that any person who is aggrieved by the decision of the Tahsildar can, within a period of one year from the date of such decision, institute a civil suit to get the said order set aside or modified. It, therefore, follows that the directions of the Tahsildar or the appellate Authority in that regard under the provisions of the Maharashtra Land Revenue Code, 1966, are not final and are subject to the civil suit which can be filed. On this premise, the trial Court has granted the temporary injunction.

After perusal of the judgment of the appellate Court, it can be seen that the appellate Court has unnecessarily proceeded on a premise that since the situation on the ground changes for any reason not attributable to the parties, the same is to be dealt with by the Court by keeping the practicalities of the matter in hand. The judgment of the appellate Court proceeds on the premise that the report of the Tahsildar, even though it shows an existing way, the same also shows that the said way cannot be used due to it being converted into a Nala and having hole pits in that. It, therefore, has recorded a finding that the said way cannot be used properly as a right of way by those whose lands are situated adjacent to the said Nala. It has, therefore, proceeded to disturb the findings of the trial Court.

In my considered opinion, the judgment of the trial Court is unsustainable for reasons more than one. As has been held by the Hon’ble Apex Court in the celebrated judgment of Wander Ltd. and Another v. Antox India P. Ltd., reported in 1990 Supp SCC 727, which is subsequently followed in the judgment of Ramakant Ambalal Choksi v. Harish Ambalal Choksi and Others, reported in (2024) 11 SCC 351, it is a settled principle of law that an order of temporary injunction can be interfered with only in a limited spectrum. It is only when the orders are entirely perverse, inasmuch as no such order could have been passed on the basis of the material on record, then only the order can be disturbed. As held by the Hon’ble Apex Court, an appeal on an application for temporary injunction is an appeal on principle and, therefore, the order granting temporary injunction cannot be lightly disturbed. Having regard to the principles laid down in the judgments of the Hon’ble Apex Court, I am afraid that the judgment of the appellate Court in the present matter is not sustainable.

The appellate Court has proceeded on a premise as if it were deciding an application for temporary injunction and not an appeal thereon. It has virtually conducted a mini-trial at that stage, which is expressly prohibited by virtue of a plethora of judgments of this Court and the Hon’ble Apex Court. It is not open for the appellate Court, while deciding an application for temporary injunction, to hold that if it had dealt with the matter at the trial stage, it could have taken a different view. The judgment entirely flows on a premise as if it were deciding the application at the trial stage. The findings in that regard cannot be said to be sustainable or countenanced.

Furthermore, the appellate Court has unnecessarily harped on the maintainability of the suit in view of the provisions of Section 143 of the MLR Code, 1966, ignoring the aspect that all this material has been considered by the trial Court at the trial stage. In that view of the matter, I am of the considered opinion that the judgment of the appellate Court is perverse in law and liable to be interfered with in writ jurisdiction. Hence the following order is passed:

The petition is allowed and disposed of. The rule is made absolute in the aforesaid terms.