SPECIAL LEAVE PETITION (CIVIL) NO. 28538 OF 2011
EDNA SUSHILA SAMUEL Appellant(s)
WAMAN KRISHNA GALANDE (D) THR.LRS. & ORS. Respondent(s)
O R D E R
1. This special leave petition seeks to challenge the judgment
and order dated 8.7.2011 passed by learned Single Judge of the High
Court of Judicature at Bombay in Second Appeal No.257 of 2011. By
that judgment the learned Single Judge has left undisturbed the
decisions of the First Appellate Court as also of the Trial Court i.e.
Civil Judge, Senior Division, Pune rendered on 23.12.2010 in Regular
Civil Suit No.1109 of 2003.
2. Heard Mr. Amol Chitale, learned counsel appearing for the
petitioner and Mr. V.A. Mohta and Ms. Indu Malhotra, learned senior
counsel appearing for the respondents. Mr. Manish Pitale has appeared
for an intervenor.
3. The above referred suit was filed by the plaintiff-petitioner
seeking an injunction against the respondents on the basis of her
alleged possession of the property concerned. The suit property is a
piece of land of about 10 acres, situate at Vadgaon Sheri, Taluka
Haveli, District Pune. The plaintiff relied upon the Revenue entries
from 1955 to 1998 and also the application made by the respondents to
get Exemption Certificate under Section 88-C of the Bombay Tenancy and
Agricultural Lands Act, 1948. Apart from that the plaintiff relied
upon the averments which the plaintiff had made in the plaint and some
statements of the defendant-respondent in the Revenue proceedings.
4. It is the settled position that when a tenancy matter is in
the Court, the Court decides the same on the basis of the evidence
adduced before it. In that process the issues are framed, documents
are exhibited, the revenue entries are examined and an appropriate
inference is drawn. The 7×12 extract of one year which has been
produced by the plaintiff-petitioner, shows the name of father of the
plaintiff in the other rights column. The name of the ancestor of the
respondent is also shown in the same column. This is the best document
relied upon by the plaintiff-petitioner. As against that, without
there being any other evidence which could be accepted by the Court,
the Trial Court held that the plaintiff-petitioner claims to have
possession of a parcel of land through her father who was an employee
in a company, known as “Bombay Bio Products”. It is not the case of
the plaintiff-petitioner that the plaintiff was, in any way, the
tenant of the respondent inasmuch as there are no rent receipts relied
upon by the plaintiff. If the plaintiff was in possession of a parcel
of land and cultivating the land, she would have got the appropriate
certificate under Section 32-G of the Bombay Tenancy and Agricultural
Lands Act and claimed to be “protected tenant”. The plaintiff failed
to obtain that certificate also. That apart, if the plaintiff was in
possession of the land and cultivating the same, as is contended by
her, there would have been a number of documents which could have been
produced and relied upon by her, like electricity bills, bills for
payment of water charges, etc. and even for that matter, an affidavit
or evidence of the neighbours could have been obtained and placed on
record. But nothing of that kind was filed by the plaintiff and
ultimately the suit was dismissed.
5. A question arises as to whether the Trial Judge has committed
any error and if so, which is that. To this, the submission of the
plaintiff-petitioner is that those revenue entries as well as the
application made by the respondent for obtaining exemption certificate
under Section 88C, should have been accepted as evidence in favour of
the plaintiff, viz. that they will take appropriate proceedings
against the tenant.
6. The revenue proceedings do show that the defendant has made
some such statements, but those statements were made while seeking
exemption. The Civil Court had to decide on the basis of the material
that was adduced in evidence by the plaintiff before it. The Trial
Judge could not hold that the plaintiff was in possession of the suit
property on the basis of the material provided. The evidence of the
plaintiff herself shows that her father was an officer in the
aforesaid company, her husband was an officer in Merchant Navy and she
was required to go along with him and she never visited this
particular area i.e. the suit property for a number of years.
7. Mr. Mohta, learned senior counsel appearing on behalf of the
respondents pointed out that the plaintiff was required to file
another suit bearing No.104 of 2010 against one Mr. Popatlal
Navalakha, who she claims to be her manager and who had also claimed
independent possession on a parcel of the land. It is seen that this
suit was for a permanent injunction and alternatively a prayer was
also made therein that the possession be given to the plaintiff. If
this is the position of the plaintiff in the other suit, it could not
be said that she was in possession when she sought possession from Mr.
8. The land in question is a Ramoshi Watan land and the case of
the defendant is that one Bhivaji Galande, who was the predecessor of
the defendant, had purchased this land in auction and that is how
their claim to be in possession. The revenue certificate (which is a
7×12 extract) also mentions the State Government as owner and the name
of Galande in the other rights column. The Trial Court, therefore,
examined all these records and noted that the tenancy Court had held
that the plaintiffs were not tenants in the suit property. The Trial
Court has also referred to the fact that the suit filed against
Navalakha was filed in 1991 and therefore, the plaintiff was not in
possession at that particular point of time also. This being the
evidence, in our view, there was no occasion for the Trial Court to
grant any injunction as sought by the plaintiff. The Trial Court also
observed rightly that no documents were adduced by the plaintiff to
show that at present she was in possession and also making payment of
rent to the landlord defendant.
9. In view of these materials, the injunction could not have
been confirmed by the First Appellate Court as well as by the High
Court in the second appeal. We do not see any reason to interfere
with the impugned order passed by the High Court. The special leave
petition is dismissed. Needless to state that the interim orders
passed by this Court in special leave petition and the contempt
petition, stand vacated.
10. We may also note that one Balu Khandu Ramoshi had filed a
title suit, bearing No.636 of 2012, which is pending before the Joint
Civil Judge, Senior Division, Pune. Mr. Manish Pitale has appeared on
behalf of the aforesaid plaintiff by filing I.A No.6 of 2013. The
present proceedings are arising out of the suit for injunction filed
by the plaintiff Edna Samuel. Those proceedings filed by Balu Khandu
Ramoshi will be decided on their own merits. I.A No.6 of 2013 stands
disposed of accordingly.
CONTEMPT PETITION (CIVIL) NOS.103/2012 and 276/2012:
11. In view of the order passed by us in the special leave
petition above-mentioned, these contempt petitions are also disposed
March 20, 2013.
ITEM NO.6 COURT NO.12 SECTION IX
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Civil) No(s).28538/2011
(From the judgement and order dated 08/07/2011 in SA No.257/2011 of the
HIGH COURT OF BOMBAY)
EDNA SUSHILA SAMUEL Petitioner(s)
WAMAN KRISHNA GALANDE (D) THR.LRS. & ORS. Respondent(s)
(With appln(s) for vacation/variation of ad-interim order, exemption from
filing O.T., impleadment and office report)
CONMT.PET.(C) NO. 103 of 2012 in SLP(C) No.28538/2011
CONMT.PET.(C) NO. 276 of 2012 in CONMT.PET.(C) NO. 103/2012
(With application for exemption from filing O.T.)
Date:20/03/2013 These Petitions were called on for hearing today.
HON’BLE MR. JUSTICE H.L. GOKHALE
HON’BLE MR. JUSTICE DIPAK MISRA
For Petitioner(s) Mr. Amol Chitale,Adv.
Ms. Pragya Baghel,Adv.
For Respondent(s) Mr. V.A. Mohta,Sr.Adv.
Mr. Indu Malhotra,Sr.Adv.
Mr. Prakash Vitthalrao Botre,Adv.
Mr. Pravin Satale,Av.
Mr. Anand Prakash Botre,Adv.
Mr. Ankur Gupta,Adv.
Mr. Rajiv Shankar Dvivedi,Adv.
Mr. Vanshdeep Dalmia,Adv.
Mr. Kush Chaturvedi,Adv.
In I.A. No.6/13 Mr. Manish Pitale,Adv.
Mr. Sunil Kumar,Adv.
Mr. Chander Shekhar Ashri,Adv.
UPON hearing counsel the Court made the following
O R D E R
Heard the learned counsel for the parties. The special leave
petition is dismissed in terms of the signed order. Needless to state
that the interim orders passed by this Court in special leave petition
and the contempt petition, stand vacated.
The contempt petitions are also disposed of in view of the
order passed in the special leave petition.
(A.S. BISHT) (SNEH LATA SHARMA)
COURT MASTER COURT MASTER
(Signed order is placed on the file)
- the Maharashtra Ownership of Flats (Regulation of Promotion of Construction, Sale, Management and Transfer) Act, 1963 (hereinafter referred to as ‘the Act’)= According to the provisions of Section 4 (1) of the Act, the agreement, if any, executed between (advocatemmmohan.wordpress.com)
- Code of Civil Procedure, 1908 : Order 39, Rules 1, 2 and 3-Trial court granting interim ex parte injunction order without recording reasons and requiring applicant to perform duties as laid down in proviso to Rule 3-Consequence thereof-Held, injunction or (advocatemmmohan.wordpress.com)
- Code of Civil Procedure, 1908-Order XXXIX Rules 1 and 2-Interim Injunction-Contractual transaction-Money advanced to second party and third party secured the loan by hypothecation and charge-Notice by lender to the securing party seeking repayment of the (advocatemmmohan.wordpress.com)