Case Note & Summary
The writ petition was filed against the concurrent orders of the Joint Civil Judge, Senior Division, Osmanabad, and the Adhoc District Judge-1, Osmanabad, refusing to grant temporary injunction in a civil suit. The plaintiffs, three brothers, claimed ownership of suit properties based on an unregistered sale deed dated 04/02/1953 and a will deed dated 17/08/1970 executed by their grandfather. They sought declarations that they are owners, that the Municipal Council is a trespasser, and for mandatory and permanent injunctions. The trial court refused interim relief, and the appellate court confirmed that order. In the writ petition, the petitioners argued that they had been in possession for 60 years, that the Municipal Council had not proved acquisition under Section 88(f) of the Maharashtra Municipal Councils, Nagar Panchayat and Industrial Township Act, 1965, and that the title documents had been proved in earlier proceedings. They contended that balance of convenience and irreparable loss were in their favour. The respondent Municipal Council, in its reply, asserted that the land was acquired by the Local Fund in 1349 Fasli, that revenue records since 1950-51 showed the Council as owner, that the petitioners were tenants and a decree for eviction had been passed in 1983, and that the petitioners had earlier approached the Court as encroachers seeking regularization. The Court heard arguments and reserved judgment on 19/11/2013. The text of the judgment provided does not contain the final analysis or operative order.
Issue of Consideration
Whether the lower courts' rejection of the temporary injunction application was erroneous and liable to be set aside.
Case Details
2013 LawText (BOM) (12) 18
Writ Petition No. 8400 of 2013
Mr. Sanjay Natu for petitioners; Mr. R.N. Dhorde, Senior Counsel for respondent No.1; Mr. P.P. More, A.G.P. for respondent No.2
Ramchandra Dagadulal Bangad, Laxmikant Dagadulal Bangad, Mukund Dagadulal Bangad
Municipal Council, Osmanabad, and State of Maharashtra
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Nature of Litigation
Civil suit seeking declaration of ownership and injunction, with an application for temporary injunction.
Remedy Sought
Plaintiffs sought declaration that they are owners of suit properties and that defendant No. 1 is a trespasser; mandatory injunction for demolition and possession; permanent injunction against interference; and in the application (Exhibit 5), temporary injunction to protect their possession of Schedule A property and restrain creation of third party rights in Schedules B and C.
Filing Reason
Plaintiffs claimed ownership based on an unregistered sale deed dated 04/02/1953 and a will deed dated 17/08/1970; they alleged that the Municipal Council had no valid title and was attempting to evict them.
Previous Decisions
Trial court rejected the temporary injunction application; appeal (Misc. Civil Appeal No. 100 of 2012) was dismissed by Adhoc District Judge; prior related proceedings: R.C.A. No. 64 of 2007, Second Appeal No. 368 of 2010, Writ Petition No. 7949 of 2011, and LPA No. 87 of 2012; Municipal Council had obtained a decree for possession in R.C.S. No. 227 of 1983.
Issues
Whether the lower courts committed an error in refusing the temporary injunction.
Submissions/Arguments
Petitioners: unregistered sale deed and will deed prove ownership; possession for 60 years; no proof of acquisition under Section 88(f) of 1965 Act; in earlier appeal it was held that possession could not be taken without due process; appellate court ignored that title documents were proved per Order 41 Rule 27; LPA clarified that earlier observations would not prejudice declaratory suit; trial court influenced by High Court order but LPA vacated that; balance of convenience and irreparable loss in their favour.
Respondents: land was acquired by Local Fund in 1349 Fasli; revenue records from 1950-51 show Local Fund as owner; petitioners were tenants and a decree for eviction was passed in 1983; petitioners had earlier filed writ petition as encroachers seeking regularization, then withdrew and filed injunction suit; no prima facie case.
Judgment Excerpts
This writ petition is filed challenging the judgment and order dated 14/08/2012 passed below Exhibit5 in Regular Civil Suit No. 408 of 2012 by Joint Civil Judge, Senior Division, Osmanabad which is confirmed by the Adhoc District Judge1, Osmanabad in Misc. Civil Appeal NO. 100 of 2012 by its judgment and order dated 23/09/2013.
The plaintiffs who are brothers interse have filed R.C.S. No. 408 of 2012 for declaration that, they are the owners of the suit properties described in Schedule 'A' to 'C' in para1 of the plaint by virtue of sale deed dated 04/02/1953.
The Local Fund acquired the land Survey NOs. 2, 239 and 240 by paying amount from the account of Local Fund in the year 1349 Fasli.
Procedural History
The petitioners (plaintiffs) filed R.C.S. No. 408 of 2012 before Joint Civil Judge, Senior Division, Osmanabad, claiming ownership and seeking declaration and injunction. Along with the suit, they filed an application (Exhibit 5) for temporary injunction. The trial court rejected the application on 14/08/2012. The petitioners filed Misc. Civil Appeal No. 100 of 2012 before Adhoc District Judge-1, Osmanabad, which was dismissed on 23/09/2013. Aggrieved, the petitioners filed the present writ petition before the Bombay High Court. The High Court heard the matter and pronounced judgment on 03/12/2013. (The final order is not contained in the provided text.)
Acts & Sections
- Maharashtra Municipal Councils, Nagar Panchayat and Industrial Township Act, 1965: 88(f), 100(a)
- Code of Civil Procedure, 1908: Order 39 Rules 1, 2; Order 41 Rule 27
