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2010 Supreme(Bom) 883
2011(3) ALL MR 722
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)
R. K. DESHPANDE, J.
Komalbai w/o. Shahaji Wadkar & Ors.
Vs.
Vishwanath s/o. Nagu Kadam & Ors.
Writ Petition No.8450 of 2009
Decided on: 30th June, 2010.
Smt. MADHA VESHWARI D. THUBE-MHASE, Advocate for Petitioners.
Shri. N. N. SHINDE, Advocate for Respondent Nos.1 to 3.
Headnote:Constitution of India - Articles 226 and 227-Writ petition -Challenging concurrent findings of facts-Trial Court granted temporary injunction in favour of plaintiff-On finding of prima facie case and balance of convenience in his favour-Findings based upon relevant materials available on record-No error of jurisdiction or perversity in recording findings-High Court cannot interfere with such findings of facts recorded by Court below.-The contention that the names of the defendants were shown in the revenue record from the year 1999-2000 continuously, has been considered. Similarly, the Isar credit card and panchanama which is sought to be relied upon by the counsel for the petitioners has also been considered and the finding is recorded. The findings are based upon the relevant material available on record. The sufficiency or insufficiency of the material in support of such findings or appreciation of evidence, cannot be subject-matter of scrutiny under Articles 226 and 227 of the Constitution of India. There is neither any perversity nor error of jurisdiction brought to my notice, in recording findings by Courts below. This Court cannot, therefore, interfere in the findings of the fact recorded by the Courts below. It is apparently a possible view of the matter. Hence, no interference is called for in the matter.
1. This writ petition is preferred by the original defendants, challenging the order dated 13.11.2009 passed by the learned District Judge - 1, Nilanga, District Latur, dismissing the Misc. Civil Appeal No.33/2009 filed by the petitioners, challenging the order dated 8.10.2009 passed by the learned 2nd Joint Civil Judge, Junior Division, Nilanga, allowing Exh.5, application for grant of temporary injunction filed by the plaintiffs in Regular Civil Suit No.46/2009. Both the Courts below have held that prima facie plaintiffs have proved their possession over the suit property and prima facie case was also made out for grant of relief of specific performance of contract i.e. agreement dated 25.6.1998 for re-conveyance of the property. Hence, this writ petition is preferred by the original defendants.
2. Notice in this matter was issued on 14th December, 2009. On 12th April, 2010, this Court had made it clear that the matter shall be finally disposed of at the stage of admission. Thereafter, again the matter was adjourned on 14th June, 2010 as none appeared for the respondents. It was adjourned by way of last chance. Accordingly, the matter is listed today. Smt. Madhaveshwari Thube-Mhase, the learned counsel appears for the petitioners whereas Shri. N. N. Shinde; the learned counsel appears for the respondent Nos.1 to 3. Rule, Shri. Shinde, learned counsel for respondent Nos.1 to 3 waives service of notice. By consent of the parties, the matter is heard finally.
3. The facts which are not in dispute are that by registered sale-deed dated 23rd of May, 1996, the plaintiffs purchased the suit property for consideration of Rs.50,000/-. On 4.5.1998 the defendant No.1, by registered sale-deed purchased the suit property from the plaintiffs for consideration of Rs.65,000/-. The plaintiffs filed Regular Civil Suit No.46/2009 which is pending in the Court of 2nd Joint Civil Judge, Junior Division, Nilanga. It is the suit for specific performance of contract dated 25.6.1998 for re-conveyance of the property by the defendants in favour of plaintiff No. 1. It is alleged that the sale dated 4.5.1998 in favour of defendants was nominal one and it was a loan transaction with understanding that the property shall be re-conveyed upon payment of loan amount with interest. Although on 4.5.1998 there was no such agreement of re-conveyance executed nor such was the recitals in the said sale-deed, it is alleged that on 25.6.1998 such an agreement was executed and accordingly the plaintiffs had shown their readiness and willingness to pay the amount due and payable. Since the defendants refused to re-convey the property, Regular Civil Suit No.46/2009 was filed.
4. The plaintiffs filed an application, Exh.5, for grant of injunction, restraining the defendants from interfering with the possession of the suit property. The plaintiffs claimed to be in possession of the suit property and alleged that although the sale-deed was executed on 4.5.1998, the possession was not handed over to the defendants as the sale-deed was nominal. The defendants also filed an application, Exh.38, for grant of temporary injunction, restraining the plaintiffs from disturbing the possession of defendants over the suit property. According to them, the possession of the suit property was delivered under the sale-deed dated 4.5.1998 and since then the defendants were in possession of the property. The defendants denied the execution of agreement dated 25.6.1998 of which the specific performance was sought.
5. The Trial Court by its common order passed below Exhs.5 and 38, allowed the application, Exh.5, filed by the plaintiffs and rejected the application, Exh.38, filed by the defendants. The defendants were restrained temporarily from causing any sort of interference or obstruction in possession of the plaintiffs over the suit property till the final decision of the suit. The Trial Court recorded a finding on prima facie assessment of the case that the plaintiffs have made out
