Advocates:
['BHANDARI ANAND P', 'CAVEAT FILED BY ADV S G CHAPALGAONKAR', '', 'NIKHIL P DUBE']

wp10816.14.doc

1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

BENCH AT AURANGABAD

WRIT PETITION NO. 10816 OF 2014

Santosh Shivajiappa Reshme

age 42 years, occ. Agriculture

r/o Shivaji Chowk, Nilangar

Tq. Nilanga, Dist. Latur

.. PETITIONER

VERSUS

1.

Vishwanath Dhondiba Davne

age 65 years, occ. Agriculture

r/o Savta Mali Chowk, Nilanga

Tq. Nilanga, Dist. Latur

2.

Shevantabai w/o Tulshiram Chambarge

age 77 years, occ. Household

r/o Nilanga, Tq. Nilanga

Dist. Latur

3.

Vrindabai Anilkumar Wadwale

age 30 years, occ. Household

r/o Nilanga, Tq. Nilanga

Dist. Latur.

4.

Anilkumar Santram Wadwale

age 35 years, occ. Household

r/o Nilanga, Tq. Nilanga

Dist. Latur.

.. RESPONDENTS

Mr. A.P. Bhandari, advocate for petitioner.

Mr. S.G. Chapalgaonkar, advocate for respondent no. 1.

=====

CORAM : S. B. SHUKRE, J.

DATE : 24^th FEBRUARY, 2017.

ORAL JUDGMENT :

1.

Rule. Rule made returnable forthwith.

2.

Heard finally by consent of learned counsel for the respective parties.

wp10816.14.doc

2

3.

This writ petition challenges the order dated 12^th June, 2014 passed

by the learned Civil Judge, Senior Division, Nilanga, in Regular Civil Suit

No. 388/2001 thereby allowing application of original plaintiff, respondent,

vide Exh. 216 seeking temporary mandatory injunction with direction to

restore possession of the suit property to respondent no. 1 by removing tin

shed and any other construction made in the suit property as well as the

order of the learned District Judge dated 8^th October, 2014, confirming the

order dated 12^th June, 2014.

4.

It is the contention of learned counsel for petitioner that while

granting temporary mandatory injunction, the learned Civil Judge as well

as the learned Additional District Judge had ignored the basic parameters

which govern the exercise of such a drastic power. He submits that the

issue of tenancy was adjudicated upon by the tenancy Court by answering

reference and, therefore, the courts below ought to have given appropriate

consideration to the same. According to him, respondent no. 1 was not held

to be the tenant and, therefore, the courts below should have found that no

prima facie case was made out by respondent no. 1, which, however, was

not done by the courts. He also submits that under section 5 of the

Hyderabad Tenancy Act, there cannot be any letting out of the property in

between the family members and, this aspect was also not considered by the

trial Court. He further submits that no evidence was adduced by

respondent no. 1 and, there being no sufficient material to come to the

conclusion about existence of prima facie case in favour of respondent no. 1,

wp10816.14.doc

3

the Courts committed patent illegality in granting temporary mandatory

injunction.

5.

In support of his contention, he relies upon cases of Kishore Kumar

Khaitan & another Vs. Praveen Kumar Singh AIR 2006 SC 1474, Dorab

Cawasji Warden Vs. Coomi Sorab Warden and other AIR 1990 SC 867 and

Nilavabai Sida Khajure Vs. Chanamalappa Bassappa Khajure and others

1977 BCI (O) 50.

6.

Learned counsel for contesting respondent no. 1 submits that all

these aspects have been appropriately considered by the Courts below and,

therefore, there is no need to make any interference. According to him, no

perversity or patent illegality manifest from the record of the case can be

seen and, therefore, this is not a fit case for upsetting the impugned orders.

7.

On going through the impugned orders as well as the law settled by

the Honourable Apex Court governing exercise of power to grant temporary

mandatory injunction as held in the cases of Kishor Kumar Khaitan and

Dorab Cawasji Warden (supra), I find that both the Courts below have

followed the principles laid down by the Honourable Apex Court and

recorded concurrent findings of fact, based upon the material available on

record and, as such, I d