Case Note & Summary
The petitioners, Vishal Bhagwan Chandanshive and Ilahi Bandu Barudwale, filed a writ petition under Article 227 of the Constitution of India challenging the concurrent findings of the 2nd Joint Civil Judge Senior Division, Sangli, and the District Judge-5, Sangli, which rejected their application for interim injunction in Regular Civil Suit No. 432 of 2015. The petitioners claimed that their predecessor Bhagwan Bhau Chandanshive and 42 others purchased the suit property from Shri Ganpati Panchayatan Sansthan, Sangli on 11 September 1975 by a registered sale deed and were in possession. On 18 November 2015, the respondent Municipal Corporation started constructing a drainage over the suit property, prompting the petitioners to file a suit for injunction. The respondent opposed the interim application, contending that in an earlier suit filed by Vilas Maruti Katkar and Others, the matter reached the High Court in Second Appeal No. 111 of 1986, which by order dated 1 July 2004 held that the petitioners failed to prove their title over the suit property and also failed to prove the ownership of their predecessor. The trial court accepted this contention and rejected the interim injunction application, which was upheld by the appellate court. The High Court, after hearing both sides, held that the concurrent findings of fact were based on evidence and not perverse, and therefore no interference was warranted under Article 227. The writ petition was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Interim Injunction - Order 39 Rules 1 and 2 CPC - Concurrent Findings - The petitioners sought interim injunction to restrain the municipal corporation from constructing a drainage over the suit property claiming ownership. The trial court and appellate court rejected the application relying on a prior judgment in Second Appeal No. 111 of 1986 which held that the petitioners failed to prove title. The High Court refused to interfere under Article 227 as the findings were not perverse and were based on evidence. Held that concurrent findings of fact cannot be disturbed in writ jurisdiction unless there is a grave miscarriage of justice or jurisdictional error (Paras 1-10).
Issue of Consideration
Whether the concurrent findings of the trial court and appellate court rejecting the petitioners' application for interim injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908, are perverse or suffer from any jurisdictional error warranting interference under Article 227 of the Constitution of India.
Final Decision
The writ petition is dismissed. Rule discharged. No order as to costs.
Law Points
- Concurrent findings of fact
- Interference under Article 227
- Res judicata
- Title dispute
- Injunction
Case Details
2018 LawText (BOM) (01) 106
Writ Petition No. 8909 of 2017
Dr. Shalini Phansalkar-Joshi, J.
Mr. Umesh R. Mankapure for the Petitioners, Mr. G.H. Keluskar for the Respondent
Vishal Bhagwan Chandanshive and Ilahi Bandu Barudwale
Sangli Miraj and Kupwad City Municipal Corporation, Sangli
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Nature of Litigation
Civil writ petition under Article 227 challenging concurrent findings rejecting interim injunction in a suit for permanent injunction.
Remedy Sought
The petitioners sought to quash the orders dated 14 December 2015 and 6 July 2017 passed by the trial court and appellate court respectively, and to grant interim injunction restraining the respondent from constructing a drainage over the suit property.
Filing Reason
The petitioners claimed ownership and possession of the suit property and alleged that the respondent municipal corporation started construction of a drainage over it on 18 November 2015, causing obstruction to their possession.
Previous Decisions
The trial court (2nd Jt. Civil Judge Senior Division, Sangli) rejected the interim injunction application on 14 December 2015, which was upheld by the District Judge-5, Sangli on 6 July 2017 in Miscellaneous Civil Appeal No. 211 of 2015.
Issues
Whether the concurrent findings of the courts below rejecting the interim injunction are perverse or suffer from any jurisdictional error.
Whether the High Court should interfere under Article 227 with concurrent findings of fact.
Submissions/Arguments
Petitioners argued that they are owners and in possession of the suit property by virtue of a registered sale deed dated 11 September 1975, and the respondent's construction of drainage is illegal.
Respondent contended that the petitioners' title was already negated in Second Appeal No. 111 of 1986, and the concurrent findings are based on evidence and not perverse.
Ratio Decidendi
Concurrent findings of fact based on evidence cannot be interfered with under Article 227 of the Constitution of India unless they are perverse or suffer from a jurisdictional error. The petitioners failed to prove their title over the suit property as already held in Second Appeal No. 111 of 1986.
Judgment Excerpts
By this Writ Petition, filed under Article 227 of the Constitution of India, the Petitioners are invoking the writ jurisdiction of this Court, for challenging the concurrent finding of the fact...
The trial Court accepted this contention raised by the Respondent and after relying upon the judgment of this Court in Second Appeal No. 111 of 1986 held that as the Petitioners had failed to prove their title...
Procedural History
The petitioners filed Regular Civil Suit No. 432 of 2015 along with an application for interim injunction (Exhibit-5) before the 2nd Jt. Civil Judge Senior Division, Sangli. The trial court rejected the application on 14 December 2015. The petitioners appealed in Miscellaneous Civil Appeal No. 211 of 2015 before the District Judge-5, Sangli, which was dismissed on 6 July 2017. The petitioners then filed the present writ petition under Article 227 before the Bombay High Court.
Acts & Sections
- Constitution of India: Article 227
- Code of Civil Procedure, 1908: Order 39 Rules 1 and 2
