Bombay High Court
Shalanbai Shankarrao Dhumal vs Vijay Ramchandra Dhumal And Ors on 17 April, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:17486
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Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1869 OF 2024
Shalanbai Shankarrao Dhumal ...Petitioner
Versus
1. Vijay Ramchandra Dhumal
2. Manikbai Ramchandra Dhumal
3. Ratnaprabha Gorakh Shinde
SANTOSH
4. Sangeeta Shantaram Bhosale ...Respondents
SUBHASH
KULKARNI
Digitally signed by
Mr. R. D. Soni, a/w Sachin Khandagale, i/b V. R. Kasle, for
SANTOSH SUBHASH
KULKARNI
Date: 2025.04.17
the Petitioner.
20:36:06 +0530
Mr. Aseem Naphade, a/w Samiksha Mane and Deepanjali
Mishra, i/b Heramb Kadam, for the Respondents.
CORAM: N. J. JAMADAR, J.
RESERVED ON : 23rd JANUARY, 2025
PRONOUNCED ON: 17th APRIL, 2025
JUDGMENT:
–
1. Rule. Rule made returnable forthwith and, with the
consent of the learned Counsel for the parties, heard finally.
2. The petitioner – plaintiff takes exception to a judgment and
order passed by the learned District Judge, Pune, on 9 th
October, 2023 in Misc. Civil Appeal No.164 of 2021, whereby the
appeal preferred by the plaintiff came to be dismissed affirming
an order dated 19th July, 2021 passed by the learned Civil Judge
in RCS No.145/2021 thereby rejecting the application for
temporary injunction (Exhibit-5) preferred by the plaintiff.
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3. Shorn of superfluities, the background facts leading to
this petition can be stated as under:
3.1 Late Haribhai Ganpat Bhoite was the holder of
agricultural land bearing Gat No.680 admeasuring 1 H. 31 R.
situated at Veer, Taluka Purandar, District Pune (“the suit
land”). Late Ramchandra Dhumal, the husband of defendant
No.2 and father of defendant Nos.1, 3 and 4 was a tenant
therein. Pursuant to the orders passed by the Tribunal under
the Maharashtra Tenancy and Agricultural Lands Act, 1948
(“the MT&AL Act, 1948”), the purchase price of the suit land
was fixed and under a registered Sale Deed dated 11 th August,
1978 late Ramchandra purchased the suit land.
3.2 Ramchandra Dhumal passed away on 12 th March, 1979.
He was survived by the defendants and late Muktabai, the co-
wife, Manikbai (D2). Late Muktabai and Manikbai, defendant
No.2, sold the suit land to the plaintiff under a registered Sale
Deed dated 11th February, 1982 for a valuable consideration.
The plaintiff was also put in possession of the suit land.
3.3 The defendants, thus, had no right, title and interest in
the suit land. Yet, the defendants on the basis of a shallow
entry of the name of late Ranchandra in the record of rights of
the suit land, filed an application to mutate their names in the
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record of rights of the suit land. The revenue officer unlawfully
entered the names of the defendants vide ME No.7792. The
plaintiff challenged the certification of ME No.7792 by preferring
an appeal before the Deputy Collector. The defendants by taking
undue advantage of the said shallow entry, started to cause
obstruction to the possession and cultivation of the plaintiff and
made known their intent to create third party rights in the suit
land. Hence, the suit for perpetual injunction.
3.4 In the said suit, the plaintiff sought temporary injunction.
By an order dated 19th July, 2021, the learned Civil Judge was
persuaded to reject the application for temporary injunction
observing inter alia that when the Sale Deed was executed by
late Muktabai and Mankabai (D2), the wives of late
Ramchandra, the defendant Nos.1, 3 and 4 appeared to be
minor. Thus, the legality of the Sale Deed dated 11 th February,
1982 in favour of the plaintiff was questionable. On the aspect
of the factum of possession, the learned Civil Judge was of the
view that the defendants could demonstrate prima facie
possession over the suit property on the basis of the assessment
list issued by the village panchayat and the electricity
connection supplied to the defendants at the suit property. The
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elements of balance of convenience and irreparable injury were
found against the plaintiff.
3.5 Being aggrieved, the plaintiff preferred appeal before the
District Court.
3.6 By the impugned judgment and order, the learned District
Judge, declined to interfere with the discretionary order passed
by the trial court. It was, inter alia, observed that in view of the
fact that the sale deed was executed without obtaining the
permission of the Court, while the defendant Nos.1 to 3 and 4
appeared to be minor, the learned Civil Judge took a rational
and reasonable view of the matter. The learned District Judge
also found no error on the reliance placed by the trial court on
the affidavits tendered by the adjoining landholders. Thus, the
assertion of the plaintiff that she had been in possession of the
suit land since the year 1980 was negatived.
4. Being further aggrieved, the plaintiff has invoked the writ
jurisdiction.
5. On 16th February, 2024, while issuing notices to the
respondents this Court granted ad-interim relief thereby
restraining the defendants from creating third party rights in
the suit land in any manner and/or disturbing and/or
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obstructing the peaceful possession and/or cultivation of the
petitioner over the suit land.
6. Affidavits-in-reply and rejoinder have been filed.
7. I have heard Mr. Soni, the learned Counsel for the
petitioner, and Mr. Naphade, the learned Counsel for the
respondent Nos.1 to 4, at some length. The learned Counsel
took the Court through the pleadings and the material on
record.
8. At the outset, it is necessary to note that both the plaintiff
and defendants had sought leave to tender the additional
evidence before the Appellate Court. However, by an order dated
28th August, 2023, the application preferred by the parties to
produce additional evidence came to be rejected. Thus,
alongwith the pleadings, the parties have tendered the
documents for the perusal of this Court.
9. Mr. Soni, the learned Counsel for the petitioner,
strenuously submitted that the courts below have determined
the issue of possession and entitlement for temporary
injunction in a mechanical manner. Even if the case of
defendant Nos.1, 3 and 4 that they were minors at the time of
the execution of the said Sale Deed is taken at par, yet the said
alienation by the natural guardian would be voidable under
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Section 8(3) of the Hindu Minority and Guardianship Act, 1956
(“the Act, 1956”). The said voidable contract, was never
questioned, much less avoided for over 40 years. The trial court
and the leaned District Judge, ought to have kept in view the
fact that the remedy to seek a declaration that the said sale
deed is void, was barred by the provisions of the Limitation Act.
10. Mr. Soni would further urge that the trial court as well as
the learned District Judge committed an error in law in placing
reliance on the affidavits of the adjoining landholders, who have
since retracted those affidavits. Moreover, the name of the
plaintiff came to be mutated to the holders as well as cultivators
column of the suit land since the year 1988. Yet, at no point of
time, defendant Nos.1 to 4 have challenged the said mutation
entry. In these circumstances, according to Mr. Soni, impugned
orders deserve to be quashed and set aside.
11. Mr. Naphade, the learned Counsel for respondent Nos.1 to
4, would, however, urge that since the courts below have
recorded concurrent findings of facts as regards the validity of
the instrument as well as the factum of possession, this Court
may not interfere with the impugned orders in exercise of the
supervisory jurisdiction. Mr. Napahde would urge that the
jurisdiction of this Court under Article 227 of the Constitution
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of India is very limited. This Court cannot substitute its own
view for the view taken by the courts below. Nor the mere errors
of law are open for correction.
12. To buttress the aforesaid submission, Mr. Naphade placed
reliance on the judgments of the Supreme Court in the cases of
Mohd. Yunus vs. Mohd. Mustaqim and others 1 and Trimbak
Gangadhar Telang and another vs. Ramchandra Ganesh Bhide
and others2.
13. Mr. Naphade would further urge that the courts below
have recorded a positive finding that the plaintiff was not in
possession and cultivation of the suit land on the basis of
objective material. Such concurrent prima facie findings of facts
are not open for interference in the writ jurisdiction. Mr.
Naphade laid emphasis on the fact that the trial court had
placed reliance on the affidavits of two adjoining landholders.
The fact that subsequently, those adjoining landholders filed
further affidavits disowning the earlier affidavits is of no
significance, as, at this stage, the Court is required to take a
prima facie view of the matter. The documents relied upon by
the defendants, according to Mr. Naphade, clearly demonstrate
that the defendants have been in possession of the suit land.
1 (1983) 4 Supreme Court Cases 566.
2 (1977) 2 Supreme Court Cases 437.
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14. As regards the validity of the sale deed executed by
Mankabai (D2) and late Muktabai, Mr. Naphade would urge that
to the extent the instrument was executed by late Muktabai,
who was the stepmother of defendant Nos.1, 3 and 4, the
instrument was clearly void. The execution of the instrument by
Mankabai (D2) was also fraught with infirmities. Firstly, though
Mankabai (D2) was a natural guardian of defendant Nos.1, 3
and 4, she was not entitled to sell the suit land without the
previous permission of the Court. In view of the provisions
contained in sub-section (3) of Section 8 of the Act, 1956,
disposal of the property by a natural guardian in contravention
of sub-section (1) or sub-section (2) thereof is voidable at the
instance of the minor or any person claiming under him.
15. Mr. Naphade made a strenuous effort to draw home the
point that erstwhile minors were not necessarily required to
institute a suit seeking a declaration qua the validity of the
instruments executed by their natural guardian. Institution of
a suit seeking such declaration was not peremptory. The minor
could repudiate the contract made on his behalf by the natural
guardian by acts or conduct. Even by holding possession of the
suit land, the minor can show the repudiation of the contract
executed by the natural guardian.
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16. In order to lend support to the aforesaid submissions, Mr.
Naphade placed reliance on the judgments of the Kerala High
Court in the cases of Iruppakkatt Veettil Viswanathan’s wife
Santha vs. Deceased Kandan‘s L.Rs. Wife Cherukutty and
others3 and Murugan and others vs. Kesava Gounder (dead)
through LRs. and others4, a decision of Jharkhand High Court
in the case of Durga Sahu and others vs. Deo Chand Sahu and
others5, a decision of Andhra Pradesh High Court in the case of
Ogirala Gouri Sankar and anr. vs. Siri Konda Veer Sameera
Kumar Dev and anr.6 and a decision of Orissa High Court in the
case of Brundaban Mohanty vs. Abakash Rout and others 7. In
the latter case, after adverting to the previous pronouncements,
it was enunciated that a minor can avoid a contract on attaining
majority and the mode of avoidance may be by a unilateral act
or conduct like transferring the property to somebody else or by
remaining in possession of the property.
17. To start with, undoubtedly, the supervisory jurisdiction of
the High Court under Article 227 of the Constitution of India is
limited. Supervisory jurisdiction has been conferred on the
3 AIR 1972 Kerala 71.
4 (2019) 20 Supreme Court Cases 633.
5 2004 SCC OnLine Jhar 155.
6 1996 SCC OnLine AP 607.
7 1992 SCC OnLine Ori 232.
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High Court to ensure that the Courts and Tribunals act within
the bounds of their authority. In exercise of the writ jurisdiction
under Article 227 of the Constitution of India, the High Court
may not be justified in re-appreciating the evidence and
substituting its view for the views of the courts below. Nor the
High Court can interfere with the discretionary order passed by
the Courts on the premise that two views are possible on the
facts of the given case. The supervisory jurisdiction can,
however, be legitimately exercised where the order passed by the
Court is in violation of the fundamental principles of justice and
fair play or there is a flagrant defect in the procedure or the
order results in manifest injustice or the Tribunal has exercised
the jurisdiction not vested in it by law or refused to exercise the
jurisdiction vested in it.
18. In the case of Mohd. Yunus (supra), on which reliance was
placed by Mr. Naphade, the Supreme Court expounded the
contours of the supervisory jurisdiction as under:
“7. The supervisory jurisdiction conferred on the High Courts
udder Article 227 of the Constitution is limited “to seeing that
an inferior Court or Tribunal functions within the limits of its
authority”, and not to correct an error apparent on the face of
the record, much less an error of law. In this case there was, in
our opinion, no error of law much less an error apparent on the
face of the record. There was no failure on the part of the
learned Subordinate Judge to exercise jurisdiction nor did he
act in disregard of principles of natural justice. Nor was the
procedure adopted by him not in consonance with the procedure
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Article 227, the High Court does not act as an Appellate Court
or Tribunal. It will not review or re-weigh the evidence upon
which the determination of the inferior court or tribunal
purports to be based or to correct errors of law in the decision.”
19. In the case of Trimbak Gangadhar Telang (supra), the
Supreme Court enunciated the limits of the supervisory
jurisdiction in the following words:
“3. …… It is a well settled rule of practice of this Court not to
interfere with the exercise of discretionary power under Articles
226 and 227 of the Constitution merely because two views are
possible on the facts of a case. It is also well established that it
is only when an order of a Tribunal is violative of the
fundamental basic principles of justice and fair play or where a
patent or flagrant error in procedure or law has crept or where
the order passed results in manifest injustice, that a court can
justifiably intervene under Article 227 of the Constitution. ……”
20. At the same time, it does not imply that where the courts
below have not taken into account the evidence which bears
upon the matter in issue and have, thus, arrived at a finding of
fact which appears to be perverse, the High Court would be
justified in interfering with the order passed by the Court or
Tribunal. Thus in the case of Kishore Kumar Khaitan and anr.
vs. Praveen Kumar Singh8, the Supreme Court enunciated as
under:
“12. The jurisdiction under Article 227 of the Constitution
may be restrictive in the sense that it is to be invoked only to
correct errors of jurisdiction. But when a court asks itself a
wrong question or approaches the question in an improper
manner, even if it comes to a finding of fact, the said finding
of fact cannot be said to be one rendered with jurisdiction
and it will still be amenable to correction at the hands of the8 AIR 2006 Supreme Court 1474.
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High Court under Article 227 of the Constitution. The failure
to render the necessary findings to support its order would
also be a jurisdictional error liable to correction.”
21. In the case at hand, on a careful consideration of the
material on record, the broad position which emerges is that:
Late Ramchandra had acquired the suit land from the
original holder under a Sale Deed dated 11 th August, 1978. He
had two wives. Late Muktabai and Mankabai (D2). Both late
Muktabai and Mankabai (D2) executed a sale deed in favour of
the plaintiff on 11th February, 1982. Vijay Dhumal (D1) and
Sangeeta Bhosle (D4) were shown minors. Whereas
Ratnaprabha Shinde (D3) was shown to be 20 years of age.
Mankabai (D2) executed the sale deed for herself and in the
capacity of the natural guardian of defendant Nos.1 and 4.
Pursuant to the said registered sale deed the name of the
plaintiff came to be mutated to the record of rights of the suit
land vide ME No.874 on 24 th August, 1982. An endorsement
was made in the other rights column that the transaction, to
which the said ME No.874 referred to, was in violation of the
provisions of the MT&AL Act, 1948. It appears that the names of
defendant Nos.1 to 4 were shown in the record of rights till the
year 1986 – 1987. From the year 1987 – 1988, the name of the
plaintiff was mutated to both holder’s and cultivator’s column.
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However, in the other rights column, the name of late
Ramchandra continued to appear. It would be contextually
relevant to note that by an order dated 21 st July, 1990, the ALT,
Purandar, declared that the provisions of Section 84C of the
MT&AL Act, 1948 were not attracted to the transaction in
question and, therefore, the entry, “transaction in violation of
the provisions of MT&AL Act” be deleted from the record of
rights of the suit land.
22. The scene moved to the year 2020. It appears that the
defendants filed an application to mutate their names to the
record of rights of the suit land in the other rights column. On
27th November, 2020, and, thereupon, ME No.7792 was effected
by the revenue official. In the appeal preferred by the plaintiff
the Sub-divisional Officer, Purnadar, set aside the said ME
No.7792. The second appeal preferred by the defendants also
came to be dismissed.
23. In the backdrop of the aforesaid instrument and the
record of rights, the trial court was of the view that though the
name of the plaintiff was mutated to the record of rights of the
suit land yet the assessment list issued by village panchayat
Veer in respect of property No.2105 indicated that there was a
structure over Gat No.680 in the name of Vijay Dhumal (D1); an
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electricity connection was also issued by MSEDCL to the said
premises which stood in the name of defendant No.1, as was
evident from the Electricity Bill for the month of June 2021, and
the two adjoining landholders had filed affidavits affirming that
the defendants were in cultivation of the suit land and,
therefore, those documents commanded preference over the
entries in the record of rights.
24. Before the learned District Judge, an endeavour was made
by both the parties to place additional evidence/material.
However, the learned District Judge rejected those applications
on the premise that no case under Order 41 Rule 27 of the Code
was made out. Confining himself to the material which was
produced before, and considered by, the trial court, the learned
District Judge concurred with the view of the trial court. It was,
however, noted that one of the deponents had affirmed another
affidavit to state that the plaintiff was in possession and
cultivation of the suit land and there were affidavits of other
persons, who subscribed to the version that the plaintiff was in
possession and cultivation of the suit land.
25. In view of the aforesaid prima facie concurrent findings of
facts normally this Court would be loathe to interfere with such
discretionary orders. However, in the facts of the case at hand,
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the courts below seem to have been swayed by the fact that the
Mankabai (D2) had executed the sale deed in favour of the
plaintiff without obtaining the prior permission of the Court
and, therefore, the sale deed was voidable. The time-lag which
had elapsed i.e. more than 38 years was not adequately taken
into account by the courts below. The developments which
normally associate with such passage of almost four decades
ought to have informed the exercise of discretion.
26. As noted above, with a complete lull from the year 1990,
there was a flurry of activities in the year 2020 starting with the
mutation of the names of defendant Nos.1 to 4 in the other
rights column of the suit land. Evidently, the entry in the
assessment list and the electricity connection to the house
premises situated in suit land were also contemporaneous to the
proceedings before the revenue authority in the year 2020.
27. The matter does not rest at that. There is material to
indicate that the village panchayat passed a resolution to delete
the entry of House No.2105 in the suit land on 25 th December,
2021. Certain proceedings, including a prosecution, came to be
initiated for obtaining the electricity connection by allegedly
submitting false documents. The question that wrenches to the
fore is, could the courts below have refused to grant injunction
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on the basis of the material which they look into account. If the
assessment list and the electricity bill are shown to be unworthy
of reliance, even at a prima facie stage, what remains is the
affidavits of the adjoining landholders, one of which was
promptly retracted.
28. At this stage, the legal position as regards the alienation,
which is voidable under Section 8(3) of the Act, 1956, deserves
to be considered. Sub-section (3) of Section 8 declares that any
disposal of immovable property by a natural guardian in
contravention of sub-section (1) or sub-section (2) is voidable at
the instance of the minor or any person claiming under him. Mr.
Naphade made an endeavour to urge that it is not peremptory
for the erstwhile minor to institute a suit to set aside the
alienation. The repudiation of the alienation can be manifested
by acts or conduct of erstwhile minor including by remaining in
possession and contesting the suit instituted by the purchaser.
29. In the light of the view which this Court is persuaded to
take, I do not deem it appropriate to conclusively determine this
issue. Suffice to note that the submissions canvassed by Mr.
Naphade that under no circumstances it is necessary for the
erstwhile minor to institute the suit or seek the relief of setting
aside of the alienation cannot be accepted unreservedly.
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30. In the case of Murugan (supra) the Supreme Court after
an elaborate analysis and adverting to the previous
pronouncements, enunciated that a suit by quondam minor to
set aside the alienation of the property by the guardian is
governed by Article 60 of the Limitation Act, 1963 and the minor
must file the suit within the prescribed period of three years
after attaining majority. The Supreme Court went on to hold
that the alienations which were voidable at the instance of the
minor or on his behalf, are required to be set aside before the
relief of possession can be claimed by the plaintiff. Suit filed on
behalf of the minor without seeking prayer for setting aside the
sale deeds was not properly framed and could not have been
decreed.
31. In the case of Vishwambhar and others vs. Laxminarayan
(Dead) through LRs.9, the Supreme Court enunciated the law as
under:
“9. Article 60(b)(ii) refers to a suit when a ward dies before
attaining majority. The present is a case where Palanivel
died on 11.02.1986 before attaining majority, his date of
birth being 16.07.1978, the limitation to avoid instrument
made by guardian of the ward is 03 years from the death of
ward when he dies before attaining majority. This Court had
occasion to consider Articles 60 and 65 of the Limitation Act
in reference to alienation made by a de-facto guardian of a
minor. In the case of Madhukar Vishwanath Vs. Madahav
and Others, (1999) 9 SCC 446, the maternal uncle of the
appellant has executed a sale deed. The appellant after
becoming major on 22.08.1966 filed a suit on 07.02.19739 AIR 2001 SC 2607.
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praying that transferors be required to deliver the
possession of the property. On behalf of appellant, Article 65
was relied for the purposes of limitation. This Court held
that it is Article 60 and not Article 65, which is applicable.
Paragraph No. 4 and 5 of the judgment are relevant, which
are quoted as below:-
“4. XXXXXXXXX
That the defendant, Baburao Madhorao Puranik, was
the appellant’s de facto guardian had been established
and, therefore, the disposal by him of the said property
was void. Being void, it was open to the appellant to
file the suit for possession of the said property and the
period for limitation for such suit was prescribed by
Article 65.
5. ……………………Even if the suit was entertained as
pleaded, no decree for possession could have been
passed without first finding that the alienation was not
for legal necessity and was, therefore, bad in law. To
such a suit the provisions of Article 60 apply. Article
60 relates to a suit to set aside a transfer of property
made by the guardian of a ward by the ward who has
attained majority and the period prescribed is three
years commencing on the date on which the ward
attains majority………………………”
32. In the case at hand, a period of more than 20 years has
elapsed since defendant Nos.1, 3 and 4 attained majority. Not
only defendant Nos.1, 3 and 4 did not institute the suit to set
aside the transfer in favour of the plaintiff but prima facie there
is no material to indicate that the erstwhile minors repudiated
the transaction by some other act or conduct after they attained
majority within the stipulated period of limitation. As noted
above, there was a flurry of activity in the year 2020. That
brought in its trial the controversy over the factum of
possession.
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33. As both the parties intended to produce additional
documents and the trial court as well as the Appellate Court
have confined themselves to the aforesaid material only, in the
considered view of this Court, it may not be appropriate to
determine the factum of possession, even prima facie by
examining the documents tendered by the parties before this
Court, of which the trial court had no benefit. It would,
therefore, be in the fitness of things that the orders are set aside
and the application is remitted back to the trial court for a fresh
decision after providing an opportunity to the parties to produce
further documents/material. In the meanwhile, it would be
expedient in the interest of justice to continue the ad-interim
order passed by this Court on 16 th February, 2024 till the
decision on the application for temporary injunction.
34. The upshot of the aforesaid consideration is that the
petition deserves to be partly allowed.
35. Hence, the following order:
:ORDER:
(i) The petition stands partly allowed. (ii) The impugned order as well as the order passed by the
trial court on the application (Exhibit-5) dated 19 th July,
2021 stand quashed and set aside.
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(iii) The application (Exhibit-5) stands restored to the file of
the Civil Judge, Junior Division, Saswad.
(iv) The learned Civil Judge is requested to hear and decide
the said application afresh after providing an effective
opportunity of hearing to the parties.
(v) The plaintiff shall file affidavit and produce documents
before the trial court within a period of two weeks from
the date of uploading of this order. The defendants are at
liberty to file further affidavit and documents within two
weeks thereafter.
(vi) The learned Civil Judge is requested to make an
endeavour to hear and decide the said application as
expeditiously as possible.
(vii) In the meanwhile, the ad-interim order passed in terms of
prayer clause (b) shall continue to operate till the final
decision of the application (Exhibit-5).
No costs.
Rule made absolute in the aforesaid terms.
[N. J. JAMADAR, J.]
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