1 wp760.22

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, AT NAGPUR.

WRIT PETITION NO. 760 OF 2022

( Mahesh Damodardas Bhutada and another ..vs.. Champadevi Nandlal Bhutada and others )

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Office Notes, Office Memoranda of Coram,

Court's or Judge's orders

appearances, Court's orders of directions

and Registrar's orders

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Mr. A.V. Bhide, Counsel for the petitioners.

CORAM : ROHIT B. DEO

, J

.

DATED : 11-02-2022

Hearing was conducted through video

conferencing and the learned Counsel agreed that the

audio and visual quality was proper.

2.

Petitioners are the defendants in Regular Civil

Suit 33/2017 which is instituted by the respondents

herein seeking declaration, partition and separate

possession of the suit property, which is described in

paragraph 10 of the suit plaint as residential house

assigned numbers 87/1 and 87/2, and are renumbered

20/1 and 20/2 situated within the jurisdiction of Gram-

Panchayat Panwadi, Tahsil-Arvi, District-Wardha.

3.

The petitioners, who shall be referred to as the

defendants hereinafter, filed their written statement and

lodged counter-claim seeking injunctive relief against the

plaintiffs qua agricultural fields assigned survey numbers

22/1 and 22/2 renumbered 299.

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4.

The defendants sought temporary injunction vide

application Exhibit 37 seeking to restrain the plaintiffs

from interfering with their possession qua the

agricultural fields. The learned trial Judge was pleased

to dismiss the application seeking temporary injunction

vide order dated 27-7-2018, inter alia holding that it is

the plaintiffs who are in possession of the agricultural

fields.

5.

Dissatisfied,

the

defendants

preferred

Miscellaneous Civil Appeal 25/2018, which the learned

District Judge-1, Wardha dismissed vide judgment dated

27-8-2020. The learned Appellate Judge concurred with

the finding rendered by the learned trial Judge and held

that the defendants failed to prove possession qua the

agricultural fields.

6.

The defendants are assailing the concurrent views

of the Courts below by invoking supervisory jurisdiction

under Article 227 of the Constitution of India. In the

context of the claim of the defendants to be in possession

of the agricultural fields qua which there was alleged

interference, it would not be necessary to reproduce the

respective narratives. Both the Courts below have rightly

proceeded on the premise that in order to establish

entitlement to temporary injunction of the nature sought,

the defendants were obligated to prima facie establish

their possession. Both the Courts below have, after

considering the material on record, recorded a finding

3 wp760.22

that the defendants are not in possession, and are,

therefore, not entitled to an injunction restraining the

plaintiffs from disturbing the possession.

7.

Perusal of the material on record and the facts

culled out in the order and judgment impugned, reveal

that the plaintiffs placed on record 7/12 Extracts to

establish cultivating possession and supplemented the

said material with bills evidencing purchase of fertilizers,

documents evidencing sale of the agricultural produce to

the Agricultural Produce Market Committee and Traders,

electricity bills and the demands. The defendants, who

are admittedly residing in Andhra Pradesh, since several

years did not place on record a single document to

establish their possession qua the suit property, apart

from a Gift-deed dated 08-2-1980 and a legal notice

dated 30-11-2009