Bombay High Court
Dnyandev Sonba Shelke And Ors vs Ramesh Dagdu Shelke And Ors on 12 June, 2025
Author: N.J. Jamadar
Bench: N.J. Jamadar
2025:BHC-AS:23189
Varsha wp-15233-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 15233 OF 2022
1. Dnyandev Sonba Shelke }
Age: 60 years, Occu: Agriculturist, }
R/o Nimbodi, Post-Tambve, Taluka- }
Khandala, District-Satara. }
2. Dattatrau Sonba Shelke }
Age: 56 years; Occu: Agriculturist; }
R/o. Nimbodi, Post-Tambve, }
Taluka-Khandala, District-Satara }
3. Ramchandra Sonba Shelke }
Age:40 years; Occu: Agriculturist; }
R/o Nimbodi, Post-Tambve, }
Taluka- Khandala, District-Satara }
4. Amol Manshing Shelke }
Age: 35 years, Occu: Agriculturist; }
R/o. Nimbodi, Post-Tambve, }
Taluka- Khandala, District-Satara. }
5. Sulochana Manshing Shelke }
Age: 60 years, Occu: Agriculturist; }
R/o. Nimbodi, Post-Tambve, }
Taluka- Khandala, District-Satara. }
6.Varsha Rama Kokare }
Age: 33 years, Occu: Agriculturist; }
R/o. Vidnni, Taluka- Phaltan, District- }
Satara. }
7. Seems Dattatray Dhaigude }
Age: 30 years, Occu: Agriculturist; }
R/o. Khed Budruk, Post-Atali, }
Taluka-Khandala, District-Satara. }
8.Putalabai Ramchandra Dhaigude }
Age: 30 years, Occu: Agriculturist; }
R/o Sukhed, Taluka-Khandala }
District-Satara. }
9. Gulab Sonba Shelke }
Age: 65 years, Occu: Agriculturist; } .....Petitioners
R/o. Nimbodi, Post-Tambve, } (Orig. plaintiffs)
Taluka- Khandala, District-Satara. }
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v/s.
1. Ramesh Dagdu Shelke }
Age: 45 years, Occu: Agriculturist; }
R/o. Nimbodi, Post-Tambve, }
Taluka- Khandala, District-Satara. }
2. Rupali Dattaray Shelke }
Age: 65 years, Occu: Agriculturist; }
R/o. Nimbodi, Post-Tambve, }
Taluka- Khandala, District-Satara. }
3. Sunita Balasaheb Shelke }
Age: 46 years, Occu: Agriculturist; }
R/o. Nira-Wagaj, Post-Baramati, }
District-Pune. }
4. Kundalik Dagdu Shelke }
Age: 65 years, Occu: Agriculturist and }
Advocate; }
R/o. Nimbodi, Post-Tambve, }
Taluka- Khandala, District-Satara. }
5. Lata Kundalik Shelke }
Age: 58 years, Occu: Agriculturist; }
R/o. Nimbodi, Post-Tambve, ]
Taluka- Khandala, District-Satara. }
6. Ashish Kundalik Shelke }
Age: 40 years, Occu: Agriculturist; }
R/o. Lonand, Taluka-Khandala, }
District-Satara. }
7. Padmini Ramesh Shelke }
Age: 43 years, Occu: Agriculturist; }
R/o. Nimbodi, Post-Tambve, }
Taluka- Khandala, District-Satara. }
8. Balaso Dagdu Shelke }
Age: 60 years, Occu: Agriculturist; }
R/o. Nimbodi, Post-Tambve, }
Taluka- Khandala, District-Satara. }
9. Nishant Balaso Shelke }
Age: 25 years, Occu: Agriculturist; }
R/o. Nimbodi, Post-Tambve, }
Taluka- Khandala, District-Satara. }
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10. Nikhil Balaso Shelke }
Age: 29 years, Occu: Agriculturist; }
R/o. Nimbodi, Post-Tambve, }
Taluka- Khandala, District-Satara. }
11. Shankar Dagdu Shelke }
Age: 55 years, Occu: Agriculturist; }
R/o. Nimbodi, Post-Tambve, }
Taluka- Khandala, District-Satara. }
12. Jayshri Shankar Shelke }
Age: 50 years, Occu: Agriculturist; }
R/o. Nimbodi, Post-Tambve, }
Taluka- Khandala, District-Satara. }
13. Ajit Shankar Shelke }
Age: 30 years, Occu: Agriculturist and }
Advocate; }
R/o. Nimbodi, Post-Tambve, }
Taluka- Khandala, District-Satara. }
14. Kisan Vittal Shelke }
Age: 52 years, Occu: Agriculturist; }
R/o. Nimbodi, Post-Tambve, }
Taluka- Khandala, District-Satara. }
15. Pratiba Kisan Shelke }
Age: 45 years, Occu: Agriculturist; }
R/o. Nimbodi, Post-Tambve, }
Taluka- Khandala, District-Satara. }
16. Abhijit Kisan Shelke }
Age: 25 years, Occu: Agriculturist; }
R/o. Nimbodi, Post-Tambve, }
Taluka- Khandala, District-Satara. }
17. Ketan Kisan Shelke }
Age: 30 years, Occu: Agriculturist; }
R/o. Nimbodi, Post-Tambve, }
Taluka- Khandala, District-Satara. }
18. Arvind Ganpat Shelke }
Age: 56 years, Occu: Agriculturist; }
R/o. Nimbodi, Post-Tambve, }
Taluka- Khandala, District-Satara. }
19. Ratan Arvind Shelke }
Age: 50 years, Occu: Agriculturist; }
R/o. Nimbodi, Post-Tambve, }
Taluka- Khandala, District-Satara. }
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20. Nitin Arvind Shelke }
Age: 35 years, Occu: Agriculturist; }
R/o. Nimbodi, Post-Tambve, }
Taluka- Khandala, District-Satara. }
21. Dattaray Ganpat Shelke }
Age: 52 years, Occu: Agriculturist; }
R/o. Nimbodi, Post-Tambve, }
Taluka- Khandala, District-Satara. }
22. Pravin @ Mohan Ganpat Shelke }
Age: 50 years, Occu: Agriculturist; }
R/o. Nimbodi, Post-Tambve, }
Taluka- Khandala, District-Satara. }
23. Digvijay Ramesh Shelke }
Age: 19 years, Occu: Agriculturist; }
R/o. Nimbodi, Post-Tambve, }
Taluka- Khandala, District-Satara. }
24. Prasad Ramesh Shelke }
Age: 21 years, Occu: Agriculturist; } ....Respondents
R/o. Nimbodi, Post-Tambve, } (Orig. Defendants)
Taluka- Khandala, District-Satara. }
-------------------
Mr. R.V. Pai, Senior Advocate a/w Mr. Akshay Pai I.by Ms. Bina R. Pai, for
the petitioners.
Mr. P.S. Dani, Senior Advocate with P.B. Gujar, for the respondent nos. 4 to
6.
Mr. Dilip Bodake a/w Mr. Shraddha Pawar, for the respondent nos. 1 to 3.
CORAM : N.J. JAMADAR, J.
DATED : 12 JUNE 2025.
JUDGMENT :
1. Rule. Rule made returnable forthwith and, with the consent of the
counsel for the parties, heard finally.
2. By this petition under Article 227 of the Constitution of India, the
petitioners take exception to a judgment and order dated 18 th November
2022 passed by the learned District Judge, Satara in Miscellaneous Civil
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Appeal No. 57 of 2022 whereby the learned District Judge was persuaded
to allow the appeal by setting aside an order dated 20 th January 2022
passed by the learned Civil Judge, Khandala on an application for
temporary injunction (Exhibit-5) in Regular Civil Suit No. 178 of 2021 and
vacate the injunction granted by the Trial Court.
3. For the sake of convenience and clarity, the parties are hereinafter
referred to in the capacity in which they are arrayed before the Trial Court.
4. An agricultural land admeasuring 2 H. 21 R, bearing Gat No. 40 (new
Gat No. 40/1 and 40/2) situated at Mauje Nimbodi, Tal-Khandala, District-
Satara (the suit land), is the ancestral property of the plaintiffs. Sonba was
the father of the plaintiff nos. 1, 2, 3, 8 and 9. The plaintiff nos. 4 to 7 are the
wife and children of Manshing, the deceased brother of plaintiff nos. 1 to 3,
8 and 9.
5. The Plaintiff Nos. 1 to 3, 9 and deceased Mansing had raised a loan
from the Land Development Bank. In the year 1994, the plaintiffs were in
emergent need of money to repay the said loan as the Land Development
Bank was threatening to attach the properties of the Plaintiffs.
6. Gulab (P-9) was then working with Kundalik Shelke (d-4), who is also
a practising Advocate. Defendant No.4 allegedly offered to provide financial
assistance to the plaintiffs to repay the loan upon execution of certain
documents by way of security.
7. On 14th November 1994, the defendant no. 4 took the plaintiff nos.
2 , 9 and the deceased Sonba to Phaltan and made them execute certain
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documents by misrepresenting that those documents were to secure the
loan. Believing the representations of defendant no. 4, the plaintiff nos. 2, 9
and deceased Sonba, who were illiterate, executed the documents in favour
of Defendant Nos.1 to 3 under the belief that the said documents were in
the nature of a mortgage. The contents of the said documents were not
read over and explained to the accused before they came to be executed
and registered. The defendant no. 4 deposited the loan amount with the
Land Development Bank.
8. The Plaintiffs assert, the Defendant Nos.1 to 3, taking undue
advantage of the said document, instituted a Suit, being Special Suit No.
466 of 1997, for specific performance of the contract contained in said
document dated 14th November 1994, which was fraudulently got executed
from the Plaintiff nos. 2, 9 and deceased Sonba. Upon service of summons,
the Plaintiffs approached the defendant no. 4. A settlement was arrived at
between the parties. A sum of Rs. 40,000/- was paid to defendant No. 4.
The later had assured to ensure the withdrawal of the said suit.
9. The Plaintiffs averred the defendant no. 4 did not ensure the
withdrawal of the suit, as agreed. When the notice of execution in Execution
Proceeding i.e.R.D No. 134 of 2006 was served on Plaintiff no. 5, the
Plaintiffs realised that the defendant nos. 1 to 4, despite the settlement and
receipt of Rs. 40,000/-, prosecuted the suit and obtained an ex-parte decree
on 30th April 2005.
10. The Plaintiffs filed an application under Section 47 of the Code of
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Civil Procedure, 1908 (‘the Code’) in the said execution proceeding.
However, while the matter was sub-judice before the Executing Court, the
defendant nos. 1 to 4 started to cause obstruction to the peaceful
possession and cultivation of the suit land by the plaintiffs, on the strength
of the aforesaid decree. In fact, under the purported agreement for sale
dated 14th November 1994, the possession of the suit land was never
delivered to the defendant nos. 1 to 3. Nor at any time thereafter, the
possession of the suit land was delivered to the Defendant Nos.1 to 3. The
Plaintiffs have all along been in possession and cultivation of the suit land.
As the Defendant Nos.1 to 3 tried to forcibly establish possession over the
suit land, the plaintiffs were constrained to lodge reports with police. The
Defendants also tried to disturb the possession of the plaintiffs when they
started work to dig a well in the suit land. Hence, the suit for perpetual
injunction to restrain defendants from causing obstruction to the possession
and cultivation of the suit land by the Plaintiffs.
11. In the said suit, the Plaintiffs filed an application for temporary
injunction. By an order dated 20th January 2022, the learned Civil Judge
was persuaded to allow the application observing, inter alia, that prima facie
the Plaintiffs appeared to be in possession of the suit land. The learned
Civil Judge took into account the fact that in the purported agreement for
sale dated 18th November 1994, it was categorically mentioned that the
possession of the suit land would be delivered at the time of execution of
the said sale deed; the possession receipt of even date which was pressed
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into service on behalf of the defendant, was unregistered and, therefore, did
not command precedence; the record of right of the suit land indicated that
the name of the Defendant No.9 was mutated in the holders and cultivators
column, and, conversely, there was no document to show that the
defendants were in possession of the suit land.
12. Being aggrieved, the Defendants preferred an appeal before the
learned District Judge. By the impugned order, the learned District Judge
was persuaded to interfere with the exercise of discretion by the Trial Court
observing, inter alia, that the findings recorded by the Trial Court were
perverse and the Trial Court committed an error in appreciating the material
on record.
13. The learned District Judge was of the view that the plaintiff had
admitted the execution of the purported agreement for sale dated 18 th
November 1994; under the said agreement almost entire consideration of
Rs. 1,89,000/-, out of the total consideration of Rs. 1,90,000/-, was
accepted and acknowledged. The possession receipt records that the
possession was delivered to the defendant nos. 1 to 3 by passing a
separate receipt as the plaintiff could not have parted with the possession
of the suit land without obtaining permission of the competent authority to
alienate the suit land. And the said receipt could be lawfully taken into
account for the collateral purpose of ascertaining factum and nature of
possession. Thus, holding that the defendant nos. 1 to 3 were in
possession of the suit land, the learned District Judge was persuaded to set
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aside the order of injunction.
14. Being aggrieved, the plaintiffs have invoked the writ jurisdiction.
15. I have heard Mr. Pai, learned Senior Advocate for the Petitioners, Mr.
Dilip Bodake, learned counsel for the Respondent Nos. 1 to 3 and Mr. Dani,
learned Senior Advocate for Respondent Nos. 4 to 6, at some length. With
the assistance of learned counsel for the parties, I have perused the
material on record, including the pleadings and documents tendered before
the Trial Court.
16. Mr.Pai, learned Senior Advocate for the Petitioners, submitted that
the impugned order suffers from the vice of clear transgression of the
jurisdictional limits in an appeal against an interlocutory order. Learned
District Judge was clearly in error in interfering with the well-reasoned order
passed by the trial Court in exercise of discretionary jurisdiction. The
appeal against the discretionary order is essentially an appeal on principle
and it is not open for the appellate Court to revaluate the material and arrive
at a different conclusion on the basis of same material. It is legally
impermissible for the appellate Court to substitute its own view for the view
taken by the Court of first instance in passing the discretionary order, unless
the order appealed against is clearly perverse or against the settled
principles of law.
17. Mr. Pai strenuously submitted that, by no stretch of imagination, can
it be urged that the order passed by the trial Court granting injunction is
perverse. Learned Civil Judge has ascribed justifiable reasons to hold that,
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despite execution of the possession receipt, the Plaintiffs had been in
continuous, peaceful and uninterrupted possession and cultivation of the
suit land. Such a prima facie finding of fact was not open for interference
in exercise of limited appellate jurisdiction. To bolster up these submissions,
Mr. Pai placed reliance on the judgments of the Supreme Court in the cases
of Wander Ltd. and Anr. V/s. Antox India P. Ltd. 1 and Shyam Sel and Power
Ltd. and Anr. V/s. Shyam Steel Industries Ltd.2.
18. Mr. Pai further submitted that in the face of a clear recital in the
registered Agreement for Sale that the possession of the suit land would be
delivered at the time of the execution of the Sale Deed, the unregistered
possession receipt is of no evidentiary value. To lend support to this
submission, Mr. Pai placed reliance on the judgment of the Division Bench
of this Court in the case of M/s. Gold Touch Real Estate Pvt. Ltd. V/s.
Suresh s/o Manoharlal Suri and Ors.3
19. Per contra, Mr. Bodake, learned Counsel for Respondent No.1 to 3,
would urge that the learned District Judge was wholly justified in interfering
with the order passed by the trial Court, as it was clearly perverse.
Perversity in the order arose from the non-consideration of the vital
documents which clearly indicated that the Defendants were in possession
of the suit land pursuant to the registered Agreement for Sale and the
possession receipt.
1 1990 (Supp) SCC 727
2 (2023) 1 SCC 634
3 2016(6) ALL MR 806
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20. Mr. Bodake laid emphasis on the fact that the learned Civil Judge,
despite noting that the Plaintiffs had placed on record false and bogus
receipt of the sugar factory to bolster up the case of possession over the
suit land and had also tried to bank upon the application for sanction of loan
which was subsequently withdrawn, downplayed the said gross conduct on
the part of the Plaintiffs. It was urged that a party who approaches the
Court with unclean hands and attempts to play fraud on the Court and the
opponent, does not deserve any equitable relief. Thus, the learned District
Judge rightly corrected the error in the exercise of discretion by the trial
Court.
21. Mr. Bodake took the Court through the documents to show that there
were notices addressed on behalf of Gulab (P-9) to the authorities to the
effect that the registered Agreement for Sale of the suit land was executed
and the possession was also delivered to Defendant Nos.1 to 3. In such
circumstances, the issue of possession could not have been answered in
favour of the Plaintiffs on the basis of the record of rights only as in view of
the prohibition for alienation of the suit land, without obtaining the
permission of the competent authority, the names of the Defendants could
not have been reflected in the record of rights and that was the precise
reason for which a separate possession receipt was executed on the very
day of the execution of the Agreement for Sale.
22. Mr. Bodake also laid emphasis on the fact that except a sum of
Rs.1,000/-, the entire consideration of Rs.1,79,000/- was paid by Defendant
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Nos.1 to 3 and acknowledged by Plaintiff No.2 and 9 and deceased
Sonaba. Therefore, the impugned order does not warrant any interference
in exercise of writ jurisdiction.
23. Mr. Dani, learned Senior Advocate for Respondent Nos.4 to 6
supplemented the submissions of Mr. Bodake. Mr. Dani would further urge
that the Plaintiffs could not have been granted any interim relief in a suit for
injunction simplicitor in the face of the registered Agreement for Sale and
the possession receipt without seeking any declaration with regard to those
documents. Moreover, since the very contentions which formed the
foundation of the plaint were raised in an application filed by the Plaintiffs in
the execution proceedings under Section 47 of the Code, the Plaintiffs
could not have instituted a separate suit on the self-same grounds. Thus,
the suit was barred by the provisions contained in Section 47 of the Code.
24. Mr. Pai joined the issue by canvassing a submission that the alleged
notices addressed on behalf of Gulab (P-9) do not advance the cause of the
submission on behalf of the Plaintiffs as the said notices were addressed by
the very same Advocate, who had addressed notices on behalf of the
Defendant Nos.1 to 3. Mr. Pai would further urge that the possession of a
portion of the suit properties was taken by the Government, vide Mutation
Entry No.1176, and the compensation was paid to the Plaintiffs. This
mutation entry substantiates the claim of the Plaintiffs that they had been in
possession of the suit land all along.
25. I have given careful consideration to the submissions canvassed
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across the bar. At the outset, it is necessary to note the limits of the
jurisdiction of the appellate Court in an appeal against the interlocutory
order. The legal position is well recognized. Ordinarily, the appeal Court is
not expected to interfere with the exercise of discretion in the matter of
grant of injunction by the trial Court and substitute its own discretion for the
same, except where it can be demonstrated that the discretion has been
exercised arbitrarily or perversely, or the impugned order is contrary to the
settled principles of law. An arbitrariness in the exercise of discretion or
perversity in the order passed by the trial Court can arise where the
injunction has been granted sans material or the trial court has declined to
grant temporary injunction, despite existence of justifiable material.
26. A profitable reference in this context can be made to a three Judge
Bench decision of the Supreme Court in the case of Wander Ltd. and Anr.
V/s. Antox India P. Ltd. (supra), on which reliance was placed by Mr.Pai,
wherein the following observations have been made :
“14. The appeals before the Division Bench were
against the exercise of discretion by the Single Judge. In
such appeals, the Appellate Court will not interfere with the
exercise of discretion of the court of first instance and
substitute its own discretion except where the discretion
has been shown to have been exercised arbitrarily, or
capriciously or perversely or where the court had ignored
the settled principles of law regulating grant or refusal of
interlocutory injunctions. An appeal against exercise of
discretion is said to be an appeal on principle. Appellate
Court will not reassess the material and seek to reach a13 of 24
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below if the one reached by the court was reasonably
possible on the material. The appellate court would
normally not be justified in interfering with the exercise of
discretion under appeal solely on the ground that if it had
considered the matter at the trial stage it would have come
to a contrary conclusion. If the discretion has been
exercised by the Trial Court reasonably and in a judicial
manner the fact that the appellate court would have taken
a different view may not justify interference with the trial
court’s exercise of discretion. After referring to these
principles Gajendragadkar, J. in Printers (Mysore) Pvt. Ltd.
V/s. Pothan Joseph4 :
“… These principles are well established, but
as has been observed by Viscount Simon in Charles
Osention & Co. v. Johnston the law as to the reversal by a
court of appeal of an order made by a judge below in the
exercise of his discretion is well established, and any
difficulty that arises is due only to the application of well
settled principles in an individual case.
The appellate judgment does not seem to defer to
this principle.” (emphasis supplied)
27. In the case of Shyam Sel and Power Ltd. and Anr. V/s. Shyam Steel
Industries Ltd. (supra), the Supreme Court observed that the aforesaid
judgment in the case of Wander Ltd. (Supra), has been guiding the
appellate courts in the country for decades while exercising their appellate
jurisdiction considering the correctness of the discretion and jurisdiction
exercised by the trial courts for grant or refusal of interlocutory injunctions.
4 (1960) 3 SCR 713
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28. In the case of Seema Arshad Zaheer and Ors. V/s. Municipal
Corporation of Greater Mumbai and Ors.5 the Supreme Court expounded
the principles which govern the interference by the appeal Court in the
discretionary order passed by the trial Court. The observations in
paragraph 32 are material, and, hence, extracted below :
“32. Where the lower court acts arbitrarily,
capriciously or perversely in the exercise of its
discretion, the appellate court will interfere. Exercise of
discretion by granting a temporary injunction when
there is ‘no material’, or refusing to grant a temporary
injunction by ignoring the relevant documents produced,
are instances of action which are termed as arbitrary,
capricious or perverse. When we refer to acting on ‘no
material’ (similar to ‘no evidence’), we refer not only to
cases where there are total dearth of material, but also
to cases where there is no relevant material or where
the material, taken as a whole, is not reasonably
capable of supporting the exercise of discretion. In this
case, there was ‘no material’ to make out a prima facie
case and therefore, the High Court in its appellate
jurisdiction, was justified in interfering in the matter and
vacating the temporary injunction granted by the trial
court.” (emphasis supplied)
29. Another three Judge Bench of the Supreme Court in the case of
Skyline Education Institute (India) Pvt. Ltd. V/s. S.L.Vaswani and Anr. 6 after
referring to the previous precedents, culled out the principles in the
5 (2006) 5 SCC 282
6 (2010) 2 SCC 14215 of 24
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“22. The ratio of the abovenoted judgments in that
once the Court of first instance exercises its discretion to
grant or refuse to grant relief of temporary injunction and
the said exercise of discretion is based upon objective
consideration of the material placed before the Court
and is supported by cogent reasons, the appellate court
will be loath to interfere simply because on a de novo
consideration of the matter it is possible for the appellate
Court to form a different opinion on the issues of prima
facie case, balance of convenience, irreparable injury
and equity.” (emphasis supplied )
30. On the aforesaid anvil, reverting to the facts of the case, the
registered Agreement for Sale records that the Plaintiff Nos.2 and 9, and
deceased Sonaba agreed to sell the suit land to Defendant Nos.1 to 3 for a
consideration of Rs.1,90,000/-. Out of the said amount, payment of
Rs.1,89,000/- was acknowledged by the vendors. Since the vendors were
holding the land in excess of 8 Acres, it was necessary to obtain permission
of the Rehabilitation Officer to sell the suit land. The Sale Deed would,
thus, be executed within three months of the notice to be given by the
vendors to the purchasers after obtaining such permission from the
competent authority. The possession of the suit land would be delivered at
the time of execution of the Sale Deed. The possession receipt of even
date, inter alia, records that since the sale cannot be effected without
obtaining the permission of the competent authority, the possession of the
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31. The controversy between the parties, thus, revolves around the
factum of delivery of possession under the said possession receipt in teeth
of the recital in the registered Agreement for Sale that the possession would
be delivered at the time of the execution of the Sale Deed.
32. The matter cannot be approached from the perspective as to
whether the unregistered possession receipt commands value over the
recital in the registered Agreement for Sale. The entire gamut of the
circumstances was required to be kept in view. First, the case pleaded by
the Plaintiffs. The Plaintiffs feigned ignorance not only about the contents
but also the character of the registered instrument, executed by them. The
Plaintiffs averred, they were made to believe that they were executing the
instrument in the nature of a mortgage to secure the loan, which they
claimed they had availed from Defendant No.4. Upon the suit being
instituted by Defendant Nos.1 to 3, the Plaintiffs claimed to have
approached Defendant No.4 and repaid the amount of Rs.40,000/- to
Defendant No.4, who had assured to ensure that the suit would be
withdrawn.
33. Whether the aforesaid claim of the Plaintiffs, prima facie, appeals to
human credulity ? Even if the first part of the Plaintiffs’ claim that they were
unaware of the character and contents of the document is taken at par, yet,
the Plaintiffs would have to surmount an impediment in establishing the
second part of their claim, namely, despite becoming aware of the nature of
17 of 24
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an assurance of the Defendant No.4 that he would ensure that the suit is
withdrawn.
34. It would be contextually relevant to note that the Agreement for Sale
was executed in favour of Defendant Nos.1 to 3 and the suit was instituted
by Defendant Nos.1 to 3. On the contrary, the Plaintiffs claimed to have
paid the amount of Rs.40,000/- to Defendant No.4 and settled the dispute
with him.
35. The learned District Judge correctly appreciated the nature of the
aforesaid claim of the Plaintiffs to prima facie doubt the reliability of the
Plaintiffs’ claim. The aforesaid nature of the Plaintiffs’ claim significantly
bears upon the assertions as regards the possession of the suit land. The
justification for execution of the separate possession receipt is, prima facie,
found in the very recital in the Agreement for Sale that the sale could not be
effected without obtaining the prior permission of the competent authority.
The factors like acknowledgment of receipt of entire consideration but
Rs.1,000/- and the execution of the possession receipt simultaneous with
the registered Agreement for Sale were required to be considered in
conjunction with the said apparent impediment in execution of the
Agreement for Sale with a recital that the possession was delivered to the
purchaser under the said Agreement for Sale.
36. The fact that the name of Gulab (P9) continued to be mutated to the
record of rights of suit land, and, conversely, the names of defendant Nos.1
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with the learned Civil Judge in returning a finding that the plaintiffs were,
and defendant Nos.1 to 3 were not, in the cultivation of the suit land.
37. The learned Civil Judge did not attach much weight to the fact that
an endeavour was made by the plaintiffs to bolster up their case of
possession by relying upon a sugarcane supply receipt, which was shown
to be false and bogus. The learned Civil Judge, in terms, observed that
though the receipt was false or bogus, it did not detract materially from the
plaintiffs case as the receipt was in respect of sugarcane cultivated in only
20 R land and the total area of the land was 2 H. 21 R., and the defendants
could resort to remedies against the plaintiffs for filing such false or bogus
receipt. Likewise, the fact that an abortive attempt was made by the
plaintiffs to bank upon the sanction of loan against the security of the suit
land to substantiate their claim of possession, and, subsequently, the said
proposal was withdrawn, was not given due weight by the learned Civil
Judge.
38. The aforesaid approach of the learned Civil Judge was not in
consonance with the settled principles of law. The learned Civil Judge lost
sight of the fact that the conduct of a party, who approaches the Court for
an equitable relief, is of as much significance as the merits of the claim, in
exercising the discretion to grant interim relief. The fact that the plaintiffs
had filed a purportedly false or bogus receipt to bolster up the case for
possession ought to have entailed the consequences known to law. On the
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Varsha wp-15233-2022.docone hand, this very conduct dis-entitled the plaintiffs from an equitable
relief. On the other hand, the said conduct amounted to an endeavour to
practice fraud on the Court and the opponent. The learned Civil Judge,
thus, could not have brushed aside such flagrant conduct on the part of the
plaintiffs by observing that the defendants could resort to appropriate action
against the Plaintiffs.
39. The legal position is well neigh settled. A useful reference in this
context can be made to the decision of the Supreme Court in the case of
Gujarat Bottling Co. Ltd. and others vs. Coca Cola Co. and others 7, wherein
the Supreme Court enunciated that under Order XXXIX of the Code of Civil
Procedure, 1908, jurisdiction of the Court to interfere with an order of
interlocutory or temporary injunction is purely equitable and, therefore, the
Court on being approached, will, apart from other considerations, also look
to the conduct of the party invoking the jurisdiction of the Court, and may
refuse to interfere with unless his conduct was free from blame.
40. In an off-quoted decision of the Supreme Court in the case of S. P.
Chengalvaraya Naidu (Dead) by LRs. vs. Jagnnath (Dead) by LRs. and
others8 the Supreme Court had strongly deprecated and admonished
suppression and trickery in the judicial proceedings by observing that, a
litigant, who approaches the Court, is bound to produce all the documents
executed by him which are relevant to the litigation. If he withholds a vital
document in order to gain advantage on the other side then he would be
7 (1995) 5 Supreme Court Cases 545.
8 (1994) 1 SCC 1.
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guilty of playing fraud on the Court as well as on the opposite party.
41. In the case of Rajmas Foundation vs. Union of India9, the Supreme
Court, after adverting to judicial precedents, held that if a litigant does not
come to the Court with clean hands, he is not entitled to be heard, and
indeed such person is not entitled to any relief from any judicial forum. The
observations of the Supreme Court in paragraph 21 are instructive and,
hence, extracted below :
“21. The principle that a person who does not come to the
Court with clean hands is not entitled to be heard on the
merits of his grievance and, in any case, such person is not
entitled to any relief is applicable not only to the petitions filed
under Articles 32, 226 and 136 of the Constitution but also to
the cases instituted in others courts and judicial forums. The
object underlying the principle is that every Court is not only
entitled but is duty bound to protect itself from unscrupulous
litigants who do not have any respect for truth and who try to
pollute the stream of justice by resorting to falsehood or by
making misstatement or by suppressing facts which have
bearing on adjudication of the issue(s) arising in the case. ”
(emphasis supplied)
42. It is imperative to note that the case is hand is not that of
suppression of facts but prima facie positive act of falsehood bordering on
fraud in placing reliance on a document, which turned out to be false, to
substantiate the case of possession. Prima facie the Plaintiffs lacked
commitment to fairness in the Court proceedings in a huge measure. To
grant relief to such a party by gratuitously advising the opponent to work out
9 (2010) 14 SCC 38.
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his remedies for the alleged falsehood, would amount to putting a premium
on falsehood and sharp practice. The learned Civil Judge was, thus, in error
in adopting the approach which he was persuaded to take. By their own
conduct, the plaintiffs had dis-entitled themselves from any equitable relief.
43. Though Mr. Pai made an earnest endeavour to question the veracity
of the notices purportedly addressed on behalf of Gulab (P9) and the
statements made on behalf of the Defendants before the authorities that
they were in possession and cultivation of the suit land, in my view, the said
aspect is relegated to a subsidiary position once it is prima facie
demonstrated that the plaintiffs had tried to obtain an injunctive relief by
relying upon a purported false document. The veracity of the allegation of
the plaintiffs with regard to the documents banked upon by the defendants
would be a matter for adjudication at the trial.
44. The absence of the name of defendant Nos.1 to 3 in the cultivators
column of the suit land deserves to be appreciated in the light of, by and
large, admitted position that the sale could not have been effected without
obtaining the permission of the competent authority, as is evident from the
very recital in the agreement for sale. If viewed in the light of the
concomitant circumstances, adverted to by the learned District Judge,
namely, prima facie unsustainability of the case set up by the plaintiffs; the
stoic silence of the plaintiffs, even after becoming aware of the institution of
the suit by defendant Nos.1 to 3; the acknowledgment of entire
consideration, except Rs.1,000/-, under the registered agreement for sale
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and the contemporaneous execution of the possession receipt, apparently
to overcome the restraint on the sale without the permission of the
competent authority, the fact that the names of defendant Nos.1 to 3 were
not shown in the cultivator’s column of record of rights of the suit land does
not detract materially from the defendants claim of possession.
45. In the totality of circumstances, the learned District Judge was fully
justified in interfering with the order of injunction as the learned Civil Judge
had recorded findings which appeared to be against the weight of the
material on record and exercised the discretion contrary to the settled
principles of law. Thus, the principal submission of Mr. Pai that the learned
District Judge could not have interfered with the discretionary order, in
exercise of limited appellate jurisdiction, does not merit acceptance.
46. The upshot of the aforesaid consideration is that no interference is
warranted in the impugned order whereby the learned District Judge
justifiably corrected the error which the learned Civil Judge had committed
in the exercise of discretion.
47. The Writ Petition, thus, deserves to be dismissed.
48. Hence, the following order :
:ORDER:
(i) The Writ Petition stands dismissed.
(ii) Rule discharged.
(iii) No costs.
(N.J. JAMADAR, J)
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49. Mr. Pai mentioned the matter at 5.00 pm.
50. The matter was mentioned at 3.00 pm. also.
51. Mr. Pai submits that he has informed Mr. Bodake, the learned
Counsel for respondent Nos.1 to 3, that the petitioner would be seeking
continuation of the status quo, which has been in operation during the
pendency of this petition.
52. Mr. Bodake did not appear. None appears for Respondent Nos.1 to
3.
53. Since the status quo has been in operation during the pendency of
this petition, it would be expedient in the interest of justice that the said
order is continued for a reasonable period.
54. Thus, the status quo order shall continue to operate for a period of
six weeks from today.
(N.J. JAMADAR, J)
Signed by: S.S.Phadke
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Designation: PS To Honourable Judge
Date: 12/06/2025 19:56:38
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