SHANKAR DADA PAGARE Vs. BALU SAWALIRAM PAGARE

JUDGEMENT

(1.) BY this appeal the appellants challenge judgment and decree passed by the Joint District Judge, Nasik dated 5th September, 1985 in Civil Appeal No. 167 of 1982. That appeal was filed by respondent No.2 Sawaliram challenging the order dated 30th March, 1982 passed by the Civil Judge, Junior Division, Dindori in Civil Suit No. 452 of 1975. That Civil Suit was filed by the respondent No.2 Sawaliram and one Balu, claiming permanent injunction restraining the defendants from interfering with the possession of the plaintiffs of City Survey No. 161 of Village Dindori. It appears to be the case of the plaintiff that that land was purchased in the name of one Fakira, who is the father of defendant Nos. 5 to 8 and husband of defendant Nos. 3 and 4. It was the case of the plaintiff that merely sale Deed was taken in the name of Fakira, however, consideration was paid by the wife of Sawaliram. It was further agreed that subsequently Fakira executed Sale Deed of a part of the land in favour of Sawaliram and thereafter he executed Will dated 25th June, 1955. Thus, the plaintiffs were claiming to be the owners of the land firstly because wife of Sawaliram was the real purchaser and owner of the land, Fakira being vendor and they were also claiming the sale Deed executed by Fakira. The Trial Court held that the purchase of the land by Fakira was a benami transaction. The Trial Court also did not accept transfer of the land by Fakira. The Trial Court also held that the Will is not proved. In the result, the suit was dismissed. The Trial court also held that the plaintiffs had not filed a suit for a decree of possession of the land but they have filed the suit merely for a perpetual injunction restraining the defendants from disturbing the possession of the plaintiff of the suit field. The Trial Court held that for getting this relief of injunction the plaintiffs have to prove that they are in possession of the land. The Trial Court held that the plaintiffs have not succeeded in proving that they are in possession of the land and, therefore, the Trial Court held that the plaintiffs are not entitled to the injunction claimed by them in the suit. In the appeal filed by Sawaliram, who is one of the plaintiffs the Appellate Court however reversed the finding in relation to the transfer of a portion of land by Fakira as also on the Will. The Appellate Court however confirmed the finding of the Trial Court in so far as the benami nature of the transaction of purchase of land by Fakira is concerned. The Appellate Court, however, before granting perpetual injunction restraining the defendants from interfering with the possession of the plaintiffs Sawaliram and respondent No.9, neither referred to nor dealt with the finding recorded by the Trial Court that the plaintiffs have failed to prove that they are in possession of the land. The Appeal Court in the result allowed the suit and granted permanent injunction in the aforesaid terms.

(2.) SHRI Navare, the learned counsel appearing for the appellants firstly urged that even if it is assumed that all the findings recorded by the Appellate Court are correct, then also before granting relief of permanent injunction restraining the defendants from interfering with the possession of the suit land of the plaintiffs, the Appellate Court was under the duty to record a finding after setting aside the findings recorded by the Trial Court that the plaintiffs have not succeeded in proving that they are in possession of the land. In the submission of the learned counsel, it shows total non application of mind to the record by the Appellate Court. The learned counsel submitted that grant of permanent injunction in the terms prayed for by the plaintiffs assumes that the plaintiffs are found by the court to be in actual possession of the land, a contrary finding has been recorded by the Trial Court therefore the Appellate Court was under a duty to consider the material considered by the Trial Court for recording that finding and thereafter Appellate Court was free to arrive at a different conclusion. That having not been done, in the submission of the learned counsel, the judgment and decree passed by the Appellate Court is liable to be set aside.

(3.) NOW , perusal of the order of the Trial Court shows that the Trial Court has firstly recorded a finding that after the land was purchased by Fakira in 1950, he was cultivating the land. The Trial Court has found that the plaintiffs have admitted this position that Fakira was cultivating the land but, according to them, he was cultivating the land as their labour. The Trial court found that the plaintiffs have not succeeded in proving that Fakira was working as labour with the plaintiffs. The Trial Court, for recording of finding that the plaintiffs are not in cultivating position of the land as relied on entries and crop statements which show that it was Fakira who was in possession of the land and not the plaintiffs. The Trial Court has also referred to the fact that the plaintiffs have also not produced any receipts to show that they are paying land revenue of the land. The Trial court has also referred to suggestion given to a witness of the defendants by the plaintiffs suggesting that Fakira took forcible possession of the land from the plaintiffs. The Trial Court held the very fact that such a suggestion has been given, shows that even according to the plaintiffs they were not in possession of the land and it was Fakira who was in possession of the land. Thus, it is clear that apart from the question of title of the land, the Trial Court had relied on various factors to record the finding that the plaintiffs have failed to establish that they are in possession of the land and, therefore, in my opinion, the learned counsel for the appellants is right in his submission that the Appellate Court could not have passed an order granting perpetual injunction in the terms it was sought by the plaintiffs without first considering the material that was relied on by the Trial Court for recording the above referred finding, setting aside the finding and thereafter recording a finding of its own that it is the plaintiffs who are in possession of the land. Perusal of the order of the Appellate Court shows that not only that this aspect has not been considered, it has not even been referred to. Thus, in my opinion, it clearly shows non application of mind on the part of the Appellate Court and, therefore, on this ground the judgment and decree passed by the Trial Court is liable to be set aside. In this view of the matter, it is not necessary to decide the other contentions urged by the learned counsel for the appellants in relation to the transfer which is alleged to have been done by Fakira and the Will which is executed by Fakira.