BHIKU SOPANA VADALE Vs. BHAGWAN EKNATH ABDUL

JUDGEMENT

(1.) The defendants in Civil Suit No. 144 of 1977 have filed this revision application against an order of temporary injunction passed in favour of the plaintiff which was confirmed in appeal by the Appellate Court. The case of the defendants is that the suit land being Survey No. 81 admeasuring 60 acres situate at village Uruli Devachi, Taluka Haveli, District Poona was originally owned by Sadashiv Mahadu Bhadale and Parshuram Mahadu Bhadale. These two brothers, according to the defendants, by two registered sale deeds dated February 7, 1970 and October 12, 1972 sold this land to the defendants. Their case is that when the first sale deed was executed they were put in possession of the land. It appears to be the contention of the plaintiff that there was an agreement of sale by the owners in favour of the plaintiff dated January 5, 1970. A suit was filed by the plaintiff being Civil Suit No. 684 of 1971 for refund of the earnest money against the original owners. That suit was decreed ex parte in favour of the plaintiff. In execution of the said decree the plaintiff applied for attachment and sale of the suit property. While execution proceedings were pending an application was filed by the defendants to support their title as a result of the two sale deeds and the fact of they being in possession. However, when the application came up for hearing they remained absent. When an application for restoration of the original application was made the executing Court directed the defendants to file a separate suit. In the meanwhile the suit property was sold and it was purchased by the plaintiff at an auction sale and it is the case of the plaintiff that through the bailiff possession was handed over to him on or about October 5, 1976. In the meanwhile, the defendants filed Civil Suit No. 1008 of 1976 against the plaintiff inter alia for a declaration that the ex parte decree passed in Civil Suit No. 684 of 1971 in favour of the plaintiff was not binding on them as they were not parties to the said suit; that the plaintiff should be restrained from executing the said decree against the suit property and for other ancillary reliefs. The plaintiff also filed a suit being Suit No. 144 of 1977 against the defendant praying that he is in possession of the suit property with effect from October 5, 1976 and the defendants should be restrained by a permanent injunction from interferring with his possession. An application for consolidation of both the suits was pending. In the suit instituted by the plaintiff a temporary injunction was granted by the trial Court which was confirmed in appeal by the Appellate Court. In the meanwhile an order of consolidation of both the suits had been passed by the trial Court. It is against this concurrent order passed by both the courts granting temporary injunction in favour of the plaintiff that the present revision application is filed by the defendants.

(2.) Mr. Khambatta on behalf of the defendants submitted that even though the plaintiff alleged that through the Court Bailiff the suit land was given to him on October 5, 1976 the plaintiff was never put in possession thereof. He submitted that in the revenue records the property stood in the names of the defendants and they continued to be in possession of the property. His submission therefore was that both the courts were in error in granting a temporary injunction in favour of the plaintiff.

(3.) The question whether a party applying for a temporary injunction is in possession of the property is prima facie to be determined upon such material as is brought by the parties before the Court. It was urged by Mr. Khambatta that the handing over of the possession through the bailiff was merely a paper possession and actually the defendants possession of the suit property was not disturbed. Ordinarily it will not be easy to persuade a Court without cogent evident to accept that when a party has been handed over possession through the Court bailiff, it was merely paper possession and no physical possession was handed over. However, whether a party is actually put in possession is to be ultimately decided at the final hearing of the proceedings, but merely at the stage of interim relief the Court is concerned with the prima facie position and if the Court is satisfied that the plaintiff has proved to be in possession thereof on the date of institution of the suit, then the defendants will not be entitled to disturb his possession except in due course of law. Whether the defendants contentions are correct or not will be decided by the trial Court when evidence is led by both the parties. If on an application for interim injunction an order granting temporary injunction is passed the Appellate Court being prima facie of the view that the plaintiff has established prima facie possession, then naturally it will not be possible for this Court in exercise of its revisional powers to interfere with such an order granting temporary injunction. It cannot be said that the trial Court while granting the temporary injunction or the Appellate Court while hearing the appeal against that order was doing something not authorised by law. In fact, since an order granting a temporary injunction is appealable the defendants preferred the appeal before the Appellate Court and the trial Courts order was confirmed by the Appellate Court. In that view of the matter it is not possible at this stage to interfere with the concurrent order of temporary injunction passed in favour of the plaintiff by both the courts. The actual rights of the parties will be adjudicated upon when both the suits which are consolidated are heard and finally disposed of.