REKHA Vs. KAMALABAI

JUDGEMENT

(1.) By this petition, the petitioner (original defendant no.1) has challenged order dated 03-10-2016, passed by the District Judge3, Washim (appellate Court), dismissing an appeal filed by her. By the said appeal, she had challenged order dated 08-07-2016, passed by the Court of Civil Judge, Senior Division, Washim (trial Court), granting application for temporary injunction filed by the respondent (original plaintiff). The respondent filed suit for declaration, possession and permanent injunction against the petitioner and her minor son concerning agricultural property in village Shahapur, Tq. Mangrulpir, District Washim, claiming that she was the owner and in possession of the suit property after the death of her husband Ramkrushna Marge. Along with the suit, the respondent filed an application under Order XXXIII Rule 1 of the Code of Civil Procedure,1908 (CPC) to sue as a forma pauperis. During the pendency of the said application, the respondent filed an application under Order XXXIX Rules 1 and 2 read with Section 151 of the CPC for grant of temporary injunction against the petitioner (defendant). It was claimed that the respondent was in possession of the suit property and that the petitioner was seeking to interfere with her peaceful possession and cultivation of the suit property. The said application was opposed by the petitioner. It was claimed that the defendant (petitioner) was married to deceased Ramkrushna Marge and defendant no.2 was born out of their marriage. It was further claimed that a will deed dated 20-03-2010 was executed by the said Ramkrushna in favour of her minor son (defendant no.2) and that upon the death of said Ramkrushna on 12-05-2015, the petitioner was in continuous possession and cultivation of the suit property.

(2.) By order dated 08-07-2016, the trial Court found that a marriage certificate had been placed on record issued by the Gram Panchayat, showing that the respondent and said Ramkrushna Marge were married in the year 200 It was also found by the said Court on examination of the documents placed on record that 'Perepatrak' i.e. crop statements showed certain overwriting and interpolation concerning entries for the years 2014-2015 and 2015-2016. It was found to be surprising by the said Court that entries were made in favour of the petitioner for the year 2014-2015, even when Ramkrushna died on 12-05-2015. In this situation, the said documents were found not to be worthy of being considered as relevant for showing possession of the petitioner herein. In the absence of any such reliable documents, the Court relied upon the pleadings of the respondent coupled with the marriage certificate placed on record. It is relevant that an affidavit dated 02-07-2016 of a neighbour was also placed on record that vouched for the respondent being in possession of the suit property. On this basis the application for temporary injunction was allowed by the said Court. The said order was challenged by the petitioner by filing appeal before the appellate Court. By the impugned order dated 03-10-2016, the appellate Court confirmed the findings of the trial Court. The appellate Court considered the said 'Perepatrak' in detail and found that there were markings of effacing of the names in the said documents pertaining to the years 2014-2015 and 2015-2016. It was found that the claim raised by the petitioner and her minor son was based on a Will Deed, which was itself a subject matter of the suit. It was found by the appellate Court that in the Aadhar Card, the name of the petitioner was shown as Rekha Devbaji Bothe, although she claimed to be married to the said Ramkrushna. On the basis of the said documents, pleadings, evidence and material placed on record, the appellate Court dismissed the appeal and confirmed the order passed by the trial Court. The concurrent orders passed in favour of the respondent are subject matter of the challenge in the present Writ Petition.

(3.) Shri A.R. Deshpande, learned Counsel appearing on behalf of the petitioner raised twofold contentions in support of the present writ petition. Firstly, it was contended that the application for temporary injunction before the trial Court was itself not maintainable because there was no suit filed and pending in the eyes of law until the application filed by the respondent for suing as forma pauperis under Order XXXIII Rule 1 of the CPC was yet to be decided. It was claimed that until and unless the said application was decided, the application for temporary injunction could not have been considered by the trial Court. Secondly, it was contended on merits that the respondent being the plaintiff was required to stand on her own legs and that the discrepancies found in 'perepatrak' i.e. crop statements produced on behalf of the petitioner (defendant no.1) could not accrue to the benefit of the respondent. It was contended that there was no material placed on record, on behalf of the respondent to show she was indeed in possession of the suit property to claim an order of temporary injunction in her favour. On this basis, it was submitted that the writ petition deserved to be allowed and the concurrent orders passed by the Court below deserved to be set aside.