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2022 Supreme(Online)(Bom) 2094
HIGH COURT OF BOMBAY
V. G. BISHT, J
Natthu S/o Baliram Nichat, Shamrao S/o Baliram Nichat, Bahinabai S/o Ramdas Sambhe – Appellant
Versus
Rajendra S/o Tukaram Madankar – Respondent
APPEAL AGAINST ORDER NO. 62 OF 2018
For the Appellants/Petitioners: Mr. S. D. Chopde
For the Respondents: Mr. Shrey Dambhare, Mr. V. T. Deshpande
A party demonstrating prima facie case and evidence of possession is entitled to interim injunction to protect that possession pending appeal.
Headnote:(A) Civil Procedure Code - Order XXXIX Rule 1 and 2 - Specific performance of contract - The respondent filed suit for specific performance claiming that the appellant agreed to sell the suit land and received earnest money - The Trial Court denied the claim, but the Appellate Court granted interim injunction to protect possession pending appeal - Court finds sufficient grounds established for maintaining the injunction based on revenue documents evidencing the plaintiff's possession. (Paras 6, 10, 12, 13)
(B) Evidence - The appellate court observed that the possession of the suit land was upheld based on several revenue records and found no illegality in the lower court's ruling. (Paras 10, 12)
Facts of the case:
The respondent claimed specific performance of an agreement to sell a plot of land and sought an injunction against the appellants to maintain possession, alleging the appellants' attempts to dispossess him.
Findings of Court:
The Court upheld the Appellate Court's order about maintaining status quo regarding possession based on existing revenue records.
Issues: The Court addressed whether there was a prima facie case for the injunction concerning possession rights.
Ratio Decidendi: The appellate court affirmed the lower court’s findings of fact grounded on revenue documents supporting the respondent's possession.
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. claim of specific performance based on contract. (Para 2 , 3 , 4 , 5 , 6) |
| 2. possession upheld through revenue records. (Para 9 , 10 , 11) |
| 3. determination of prima facie case for injunction. (Para 12) |
| 4. final conclusion on the appeal. (Para 13) |
Heard.
2. The appellants/original defendants have preferred present appeal against the order dated 16.01.2018 passed below Exh. - 5 in Regular Civil Appeal No. 24/2017 by the learned Additional Sessions Judge, Wardha, thereby allowing the application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure (for short ‘the Code’) and thereby injecting the respondents/defendants, their agents or representatives restrained from disturbing the possession of the respondent/plaintiff over the suit land until decision of the appeal.
3. The respondent/plaintiff herein has filed suit for specific performance of the contract against the appellants/defendants along with prayer for perpetual injunction. It is the case of the respondent/plaintiff that appellant/defendant No. 1 had agreed to sell the suit land for consideration of Rs. 1,72,500/- and accordingly, he paid earnest money of Rs. 45,000/- to him. Accordingly, an earnest note has been executed by the defendant No. 1 in favour of respondent/plaintiff on 10.06.2004 by putting the respondent/plaintiff in possession of the suit land.
4. The respondent/plaintiff alleged that the appellant/ defendant No. 1 tried to take the possession of the suit land in or about the month of October 2009 and therefore, the plaintiff issued notice to defendant to execute sale-deed, however, the defendant failed to execute the same and therefore, suit for specific performance of contract and perpetual injunction came to be filed.
5. The appellant/defendant No. 1 resisted the claim by taking defence that blank stamp paper was supplied by him to one Credit Co-operative Society of which the plaintiff is a office- bearer. He alleged that the respondent/plaintiff forged the earnest note by using the said stamp paper and obtained false documents from revenue department by using political pressure.
He therefore, prayed for dismissal of the suit.
6. The learned Trial Court after considering the evidence led by the parties, dismissed the suit vide judgment and order dated 25.01.2017. Being aggrieved by the impugned judgment and decree, the respondent/plaintiff filed the first appeal bearing R.C.A. No. 24/2017. In the said appeal, the respondent/plaintiff also filed an application for grant of interim relief by way of temporary injunction in order to protect his possession and the learned Appellate Court i.e. Additional Sessions Judge, Wardha after hearing both the parties, allowed the application vide order dated 16.01.2018. It is this order which is impugned in the present appeal.
7. Mr. S. D. Chopde, learned Advocate for appellants/ original defendants, submits that it has been very specific defence of the defendants before the Trial Court that earnest note was forged by the respondent/plaintiff and by using political pressure and he also obtained forged revenue documents. Learned counsel took me through the various paragraphs of the judgment of the Trial Court in order to substantiate and support the impugned judgment and order which is subject matter of the appeal before the learned Additional Sessions Judge, Wardha. Learned counsel also took me through the impugned order passed in the appeal and more particularly paragraph 5 and submitted that the observations of the learned Appellate Court are contrary to the evidence discussed by the learned Trial Judge. According to learned counsel, impugned order deserves to be set aside and application at Exh. 5 needs to be rejected.
8. Mr. Shrey Dambhare, Advocate h/f Mr. V. T. Deshpande, learned Advocate for respondent/plaintiff on the other hand has filed written submission. I have gone through the written submission so filed on record.
9. I have also carefully gone through the impugned order of the lear
