Rule. Rule made returnable forthwith. With the consent of the parties, the petition is taken up for final disposal.
2. This writ petition is filed challenging the judgment and order dated 14/08/2012 passed below Exhibit-5 in Regular Civil Suit No.408 of 2012 by Joint Civil Judge, Senior Division, Osmanabad which is confirmed by the Adhoc District Judge-1, Osmanabad in Misc. Civil Appeal No.100 of 2012 by its judgment and order dated 23/09/2013.
3. The petitioners herein, are the original plaintiffs. The plaintiffs who are brothers inter-se 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 para-1 of the plaint by virtue of sale deed dated 04/02/1953. They have also sought for a declaration that, defendant No.1 Municipal Council is a rank trespasser on the suit properties described in Schedule 'B' and 'C' and further declaration that, construction of building of Shopping Malls on the said schedule 'B' and 'C' properties are illegal and none of the defendants have any right to own, occupy or possess the suit properties. They have also prayed for a mandatory injunction against defendant No.1 for removal of encroachment on suit Schedule 'B' and 'C' properties by demolishing building etc., and for handing over vacant and peaceful possession of said two properties. The plaintiffs have also prayed for a perpetual prohibitory injunction against the defendants restraining them from interfering with or disturbing the possession of plaintiffs in the suit schedule 'A' property and further from creating third party interest in schedule 'B' and 'C' properties.
Along with the suit, the plaintiffs have also filed an application at Exhibit5 for temporary injunction praying therein, for restraining defendant No.1, his servants, agents etc., from causing any sort of obstruction to their possession in the suit schedule 'A' property till final decision of the suit. The plaintiffs have also prayed for a temporary injunction restraining defendant No.1 from creating any third party interest in the suit schedule 'B' and 'C' properties.
4. It is the case of the petitioners that, said application was heard and rejected by the Joint Civil Judge, Senior Division, Osmanabad. Being aggrieved thereby, the petitioners herein, filed Misc. Civil Appeal No.100 of 2012 which came to be rejected by the Adhoc District Judge-1, Osmanabad by its judgment and order on 23/09/2013. Hence this writ petition.
5. Learned Counsel appearing for the petitioners submits that, there is no proof of acquisition of suit properties by defendant No.1 under Section 88(f) of the Maharashtra Municipal Councils, Nagar Panchayat and Industrial Township Act, 1965 (for short, "Act of 1965"). It is further submitted that, the record in respect of suit property does not indicate that, the respondent Municipal Council, Osmanabad is owner of the suit property. It is further submitted that, the petitioners are having possession over the suit property described in Schedule 'A' since last 60 years and in case possession of the petitioners is not protected till disposal of the suit, it will cause irreparable loss to petitioners. It is submitted that, Zumbarlal Jagannath Bangad, grandfather of the petitioners, purchased suit property in schedule 'A' under unregistered sale deed dated 04/02/1953 and they are claiming ownership and possession over the suit property under unregistered sale deed dated 04/02/1953 and by way of will deed dated 17/08/1970. It is submitted that, the District Court, Osmanabad in R.C.A. No. 64 of 2007, restrained respondent No.1 to take possession of the Schedule 'A' property without following due procedure of law under Section 88(f) and 100(a) of the Act of 1965, still respondent No.1 failed to prove that, it acquired suit properties under recognized mode as contemplated under section 88(f) of the Act of 1965. It is submitted that, title documents i.e., sale deed dated 04/02/1953 and will deed dated 17/08/1970 have been proved by leading evidence as per Order 41 Rule 27 of the Code of Civil Procedure in R.C.A. No.64 of 2007 and respondent No.1 deliberately did not brought to the notice of the High Court in Second Appeal No. 368 of 2010, in respect of the observation made by the appellate Court in R.C.A. No.64 of 2007 and therefore, findings recorded by the appellate Court in R.C.A. No.64 of 2007 attained finality.
Learned Counsel appearing for the petitioners further submitted that, appellate Court ought to have appreciated that, there is no corresponding mutation in the revenue record evidencing that, respondent No.2 has acquired the suit properties by following due procedure of law and therefore, respondent No.2 has no legal right, authority either to claim ownership or to transfer the suit properties in favour of respondent No.1. It is submitted that, the Courts below are influenced by the order passed by the High Court in Writ Petition No.7949 of 2011 in respect of observations made about title documents. It is submitted that, in Letters Patent Appeal No. 87 of 2012 which was filed by the petitioners, Division Bench observed that, observations made by the learned Single Judge will not come in the way of the appellant if he desires to file a declaratory suit and concerned Court shall decide the same on its own merits. It is further submitted that, the appellate Court erred by holding that, sale deed dated 04/02/1953 and will deed dated 17/08/1970 are unregistered and therefore, does not inspire confidence. It is submitted that, since the appellate Court erred in holding that, since the order of Resident Deputy Collector has attained finality in view of the order passed by this Court in W.P. No.7949 of 2011, defendant No.1/respondent No.1 cannot be prevented from evicting the petitioners from the suit premises. It is further submitted that, prima facie case was made out by the petitioners and therefore, application at Exhibit5 ought to have been allowed by the trial Court. It is submitted that, successor in title of late Subharao Nargonda i.e., Shri. Jeevanrao Patil and others are also claiming the possession of Survey No.240 from the respondents, petitioners and others in R.C.S. No.22 of 2008 filed before the Civil Judge, Junior Division, Osmanabad, being the owners of the suit property, respondent No.1 herein, has taken defence in the said suit that, respondent No.1 is owner by adverse possession. Therefore, the issue of ownership is still not adjudicated by the competent Court and hence, Misc. Civil Appeal No.100 of 2012 ought to have been allowed by the appellate Court by setting aside the order passed below Exhibit5 in R.C.S. No.408 of 2012. Learned Counsel invited my attention to the pleadings in the petition, grounds taken therein, contents of the application Exhibit5 which was filed before the trial Court and also grounds taken in Misc. Civil Appeal No.100 of 2012 before the appellate Court and submits that, the writ petition deserves to be allowed.
6. Learned Counsel appearing for the petitioners pressed into service exposition of the Supreme Court in the case of Government of Andhra Pradesh vs. Thummala Krishna Rao and another with Govt. of A.P. vs Bandi Venkatarama and others and Govt. of A.P. vs. Velluri Kesava Rao and another reported in [1982] 3 SCR 500 and in particular paragraphs 4,5,7 and 9 thereof, and submits that, when the genuine dispute in respect of title of the property has been raised, till establishing of title to the property, the persons who are in possession cannot be evicted summarily from the suit property. It is submitted that, in the present case also, the petitioners have filed suit for declaration of their title and ownership to the suit property and respondent No.1 has not established title/ownership and the petitioners are in possession of the suit property since last 60 years, an application for temporary injunction at Exhibit-5 deserves to be allowed.
Learned Counsel for the petitioners further invited my attention to the judgment of the Supreme Court in the case of Surya Dev Rai vs. Ram Chander Rai and others reported in 2003(5) Supreme 390 and in particular paragraph37 thereof, and submits that, in order to do complete justice, the High Court can exercise its supervisory jurisdiction. It is submitted that, in the present case, the plaintiffs/petitioners have claimed that, they are in possession of the suit properties from last 60 years and therefore, this Court may interfere in the impugned judgment and order and grant the application for temporary injunction filed by the petitioners.
7. On behalf of respondent No.1, affidavit in reply is filed by one Mr. Bharat s/o Ambrushi Vidhate who is working as Municipal Engineer, Municipal Council, Osmanabad in the present writ petition. In paragraph-4 of the said reply, it is stated that, in Nijam regime the Municipal Council, known as Local Fund. 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. The letter given by the then Tahsildar in Urdu Script clearly discloses that, Local Fund i.e., present Municipal Council, acquired the land for development of Shopping Center and playground, copy of which is is placed on record along-with affidavit in reply at Exhibit-R-1.
In reply to paragraph-4(A) of the writ petition, it is stated in the affidavit in reply that, the contents in paragraph-4(a) of the writ petition are not correct and same are denied. It is stated that, land Survey Nos.2, 239 and 240 are acquired by the Local Fund on 03/09/1345 Fasli. The Pahani Patrak of the year 1950-51 also clearly disclosed that, the land Survey No. 2 admeasuring 2 acre 39 gunthas, Survey No.239 admeasuring 3 acre 11 gunthas, Survey No.240 admeasuring 2 acre 32 gunthas and Survey No.241 admeasuring 2 acre 2 gunthas are recorded in the name of Local Fund. The grandfather, father or present petitioners have not challenged the entries as yet. Copy of Pahani Patrak of the year 1950-51 to 1959-60 is placed on record alongwith affidavit in reply at Exhibit-R-2.
In Paragraph-6 of the affidavit in reply, respondent No.1 has denied the contentions in paragraphs-4 ( B) to (D) of the petition and stated that, it is admitted fact that, suit plot was given on lease of 11 months by the Municipal Council. As the possession was not vacated, the Municipal Council filed civil suits bearing R.C.S. Nos.227 of 1983 and 231 of 1983 for recovery of possession and recovery of amount. The Municipal Council let out suit premises to father of petitioner No.1 on payment of monthly rent for the period of 11 months in the year 1960. The Municipal Council by issuing notice terminated the tenancy. Dagdulal, father of the petitioners, failed to deliver possession to the Municipal Council. Therefore, R.C.S. No.227 of 1983 was filed by the Municipal Council, Osmanabad for possession and recovery of amount. The Civil Judge, Junior Division, Osmanabad by judgment and decree dated 10/08/1984 allowed the claim of the Municipal Council, Osmanabad. Copy of the judgment and order passed in R.C.S. No.227 of 1983 is placed on record along-with affidavit in reply at Exhibit-R-3.
It is further stated in paragraph-7 of the affidavit in reply by respondent No.1 that, petitioner No.1 and other unauthorized occupants made an application/representation to the Collector, Osmanabad, seeking regularization of their encroachment and for grant of Kabala, however, it is not conceded. Writ Petition No.4947 of 2003 was filed by the present petitioner No.1 asserting his status to be encroacher in the land Survey Nos.239 and 240, claiming to have been occupied the said land since 1960. He asserted in the said writ petition for regularization of encroachment. It is further stated that, in the said writ petition, an affidavit was filed by the then Collector, Osmanabad on the basis of available record for the period of 1954-55 and more specifically Khasara Pahani Patrak and Pahani Patrak from 1955 to 1960 that, Government is possessor of the said property. Said writ petition was withdrawn by the petitioner No.1 and he filed R.C.S. No.79 of 2004 for relief of permanent injunction restraining the Municipal Council from obstructing peaceful possession. Along-with affidavit in reply, respondent No.1 has placed on record copy of affidavit in reply filed by the Collector in W.P. No.4947 of 2003.
In paragraph-8 of the affidavit in reply, respondent No.1 has denied the contentions raised in paragraph-4 ( I) of the writ petition and stated that, R.C.S.No.79 of 2004 filed by the petitioners was dismissed on 14/03/2007 by the Civil Judge, Junior Division, Osmanabad. Being aggrieved thereby, R.C.A. No.64 of 2007 was filed before the District Judge, Osmanabad and in the said appeal, at the stage of judgment, an application was moved under Order 41 Rule 27 of the Code of Civil Procedure and first time the plaintiffs produced false and fabricated sale deed. In paragraph-8 the operative part of the order passed in R.C.A. No. 64 of 2007 is reproduced. In paragraphs9 and 10 of the affidavit in reply, the respondent No.1 has denied the contentions raised in Paragraph-4(J) to (L) of the petition and it is stated that, Municipal Council filed W.P. No.1828 of 2010 challenging the interim order passed on the application filed under Order-41 Rule 27 of the Code of Civil Procedure at the stage of judgment. However, since R.C.A. No.64 of 2007 was adjudicated, therefore, said writ petition was withdrawn.
It is further stated in the affidavit in reply that, being aggrieved by the judgment and decree in R.C.A. No.64 of 2007 the respondent-Municipal Council preferred Second Appeal No. 368 of 2010. The Municipal Council initiated proceedings before the Deputy Collector, Osmanabad under Bombay Government Premises (Eviction) Act, 1955 (for short, "Act of 1955") for possession. The Deputy Collector, Osmanabad by order dated 25/10/2010 allowed the prayer of respondent No.1 and passed order of eviction. Said order was passed under Act of 1955 and in view of the said order, respondent No.1 withdrawn Second Appeal No.368 of 2010 on 21/12/2010. It is further stated in paragraph-12 of the said affidavit in reply that, District Judge, Osmanabad in R.C.A. No.275 of 2010 without considering legality of the judgment and order passed under the Act of 1955 allowed the appeal. Being aggrieved by the said order of the District Court, respondent No.1 filed W.P. No.7949 of 2011. Said writ petition was allowed thereby confirming the order passed by the Deputy Collector, Osmanabad and setting aside the judgment and decree passed in R.C.S.No.275 of 2010 on 29/02/2012. The relevant observations of the High Court in paragraph-10 of the said judgment in the aforementioned writ petition have been reproduced in paragraph-12 of the affidavit in reply. In paragraph-13 reference is made to the L.P.A. No.87 of 2012 in which the Division Bench of the High Court observed that, the Court is not inclined to entertain the L.P.A. and there is no error in the order of the learned Single Judge in W.P. No.7949 of 2011.
In paragraphs-14 and 15 of the affidavit in reply, respondent No.1 has adverted to the observations made by the trial Court while dismissing the application at Exhibit-5 in paragraph-31 of the judgment. In paragraph-16, reference is made to the various judgments of the High Court and Supreme Court. It is stated that, petitioner No.1 filed R.C.S. No.79 of 2004 and admitted that, he is encroacher. Therefore, in pursuance of Section 116 of the Indian Evidence Act, principle of estoppel comes into play and therefore, no person is allowed to appropriate and reprobate at the same time. In paragraph-17 of the affidavit in reply, reference is made to the contention of the plaintiffs about sale deed dated 04/02/1953 and will deed dated 17/08/1970 and it is stated that, the contents of the will deed itself speaks about the falsification of the sale deed dated 04/02/1953. In paragraph-18,19 and 20, it is stated that, since the District Court has concurred with the findings of facts recorded by the trial Court, therefore, this Court may not interfere in the concurrent findings of facts recorded by the Courts below. In paragraph-21 of the affidavit in reply, it is stated that, Municipal Council is working in the interest of public at large and as respondent No.1 wants to develop the property from the funds allotted by the Central Government, when the Municipal Council already has constructed part portion of the suit property by constructing Shopping Complex on Survey Nos.239 and 240 except the suit portion of the petitioners. It is stated that, in case injunction is granted in favour of the petitioners, it will cause irreparable loss to respondent No.1 who is a public body.
8. Respondent No.1 has also filed additional affidavit in reply. Paragraphs-4, 5, 6, and 6 of the said additional affidavit in reply reads thus :
"4. At the outset, I respectfully say that, in Nijam regime the Municipal Council, known as Local Fund. The local fund acquired the land survey No.2, Sy. No.239 and sy. No.240, by paying amount of from the account of Local Fund in the year 1349 Fasli. The letter given by the then Tahsildar is in Urdu Script clearly disclosed that the Local Fund i.e., present Municipal Council, acquired the land for Development of Shopping center and playground.
5. I respectfully say and submit that, the present answering respondent No.1 is Municipal Council working in the interest of public at large and as the respondent no.1 wants to develop the property from funds allotted by the Central Government, and the Municipal Council already part portion constructed of the shopping complex on the land sy. No.239 and 240. I say that, some of the land is remain to be constructs due to litigation and some construction on the land Sy. No.230 and 240 has been in progress. I say that, the old record of the revenue and the record of the local fund since 1348 Fasli is taken into consideration the alleged sale deed of the year 1953 is bogus and fabricated one. Therefore, considering the balance of convenience and merits old revenue record i.e., Pahani Patrak 13549 Fasli, the letter given by then Tahsildar in urdu script and the record since 1954 till today the name of the Government i.e, local fund and then the Municipal Council is on record. If injunction granted in favour of the petitioners then irreparable loss would be caused to the public at large. This would be against the interest of general public. Hereto annexed and marked at EXHIBITR-11 is the copy of plan of the shopping complex and the photo copies of the constructed under construction shopping complex.
6. I respectfully say and submit that, I say the Municipal Council Osmanabad expended the amount of Rs.1 crores, for the construction of site No.52, the amount of Rs.2.5 for construction of site No.71 and amount of Rs.1.35 crores for construction of site No.72 on the land sy. No.239 and 240. After construction of shopping complex the Municipal Council has allotted the same to the needy persons in auction on rent as per law. Hereto annexed and marked at EXHIBIT-R-12 is the copy of list of shop holders.
6. I respectfully state that, the alleged sale deed which is unregistered document is not a presumptive value under the transfer of property Act. Also the alleged sale deed is false and fabricated one. Because the father of the petitioner No.1 himself admitted the tenancy Therefore, considering the principle of estoppel under section 116 of Indian Evidence Act. The petitioners have no good case and no balance of convenience in their favor. Therefore both learned courts below rightly concurrently held that, the plaintiffs failed to establish a prima-facie case and fail to prove their possession referable to the title/ownership.
It is in the view of the facts and circumstances mentioned herein above the writ petition is liable to be dismissed with costs."
9. Relying upon the averments in the affidavit in reply and also documents placed on record, learned Senior Counsel appearing for respondent No.1 invited my attention to the observations of this Court while disposing of W.P. No.7949 of 2011. It is submitted that, High Court while allowing the writ petition filed by respondent No.1 have made categorical observations about the claim of the petitioners claiming title, ownership of the suit property. The Division Bench of the High Court has dismissed L.P.A. filed by the petitioners challenging the judgment and order in writ petition and said L.P.A. is also dismissed by the Division Bench of this Court thereby confirming the judgment and order passed by this Court in W.P. No.7949 of 2011. It is submitted that, two suits were instituted by respondent No.1 being R.C.S. No.227 of 1983 and 231 of 1983 in which father of the petitioners namely Dagdulal Zumbarlal Bangad was the defendant. It is submitted that, father of petitioners appeared in the said suits and defended himself as tenant of the suit property. Therefore, now it is not open for the plaintiffs who are sons of said Dagdulal Bangad to contend that, they have title or ownership over the suit property. The judgment and order in the said suits is binding upon the legal heirs of Dagdulal Bangad. It is submitted that, even petitioner No.1 filed writ petition before the High Court praying therein, to regularize his encroachment. Therefore, learned Senior Counsel appearing for respondent No.1 submits that, both the Courts below concurrently held that, the petitioners are not entitled for temporary injunction as prayed. It is submitted that, judgment and order passed in R.C.S. Nos.227 of 1983 and 231 of 1983 has attained finality. Thereafter, eviction proceedings are taken against the petitioners. Even Deputy Collector passed order thereby granting eviction order. It is submitted that, the petitioners aggrieved by the order of eviction filed Regular civil appeal which was allowed and it was ordered that, the petitioners should not be dispossessed without due process of law. Said judgment and order in Regular Civil Appeal is quashed and set aside in the writ petition filed by respondent No.1. Judgment and order in the said writ petition has attained finality, in as much as L.P.A. filed by the petitioners is dismissed by the Division Bench. It is submitted that merely because the Division Bench has observed that, in case petitioners desire to file suit claiming declaratory reliefs in respect of subject property, then observations by the learned Single Judge in respect of title documents of subject property shall not come in the way of the petitioners, cannot be mean to say that, the Division Bench has interfered in the judgment and order of the learned Single Judge in W.P. No.7949 of 2011.
It is further submitted that, in paragraph-5 of the judgment, Division Bench has observed that, after considering submissions advanced and perusal of the documents placed on record, the Court is not inclined to entertain L.P.A. and there is no error in the impugned order of the learned Single Judge. Therefore, according to learned Senior Counsel for respondent No.1, the writ petition sans merits and deserves to be rejected. He invited my attention to the certain documents/photographs placed on record to contend that, already Shopping Complex has been constructed by respondent No.1 and only small portion which is unauthorizedly occupied by the petitioners is remained to be constructed. He submits that, budget is made available by the State of Maharashtra for construction and in case, respondent No.1 is not allowed to develop schedule 'A' property, irreparable loss would be caused to the interest of the public at large since respondent No.1 is public body. It is further submitted that, in view of the concurrent findings of facts recorded by the Courts below, this Court may not interfere in the said concurrent findings of facts since view taken by the Courts below is in consonance with the material placed on record. It is submitted that, this Court cannot convert himself as a Court of Appeal and re-appreciate or revaluate of findings and therefore, writ petition deserves to be dismissed.
10. It is further submitted that, the order passed by the Division Bench in L.P.A. attained finality. It is submitted that, in earlier proceedings the plaintiffs/petitioners prayed that, they are in possession of 100' x 70', however, now they are claiming that, they are in possession of some more area. That itself shows that, entire case of the plaintiffs is false and rightly relief is refused by the Courts below. It is submitted that, the order passed by the Resident Deputy Collector is accepted by the petitioners. It is submitted that, this Court in W.P. No.7949 of 2011 in paragraph-11 has observed that, suit filed by respondent No.2 was simplicitor for injunction. No question of title was involved. In Regular Civil Appeal No. 64 of 2007, production of unregistered sale deed was allowed. Sale deed could not be accepted to be registered as it was for an amount of Rs.96/- and no registration was mandatorily required. It is submitted that, this Court while deciding the said writ petition has observed that, sale deed dated 04/02/1953 has seen light of the day for the first time in Appeal No.64 of 2007, that too by way of an application under Order 41 Rule 27 of the Code of Civil Procedure, even if the said document is treated to be 30 years old, implying benefit of Section 90 of the Evidence Act, law does not contemplates, such document never used since 1953, should be blindly accepted as a title document by presumption. Therefore, relying upon the observations in the said judgment which is confirmed in L.P.A., learned Senior Counsel appearing for respondent No.1 submits that, writ petition deserves to be rejected.
Learned Senior Counsel appearing for respondent No.1 pressed into service exposition of Supreme Court in the case of RanjeetSingh vs. Ravi Prakash reported in AIR 2004 SC 3892 and in particular paragraph4 thereof, and argued that, this Court may not indulge into exercise of re-appreciation or reevaluation of evidence or correcting the errors in drawing inferences like a Court of appeal when findings recorded by the Courts below are not perverse in any manner.
11. Learned A.G.P., appearing for respondent No.2 adopted arguments of the Senior Counsel appearing for respondent No.1 and submitted that, the writ petition deserves to be dismissed.
12. I have given careful consideration to the submissions of the Counsel appearing for the parties. With their able assistance perused the pleadings, grounds taken in the petition, annexures thereto, impugned judgment and order passed by the Courts below, affidavit in reply filed by respondent No.1, rejoinder affidavit filed by the petitioners and also judgment and order in R.C.S. Nos.227 of 1983 and 231 of 1983, all other orders passed by the competent Courts and also order of eviction passed by the concerned authority and the judgments cited supra, by the learned Counsel appearing for the parties.
13. At the outset, it would be relevant to mention that, in R.C.S. No.227 of 1983 and 231 of 1983 which was filed by respondent No.1 herein, for possession of the suit property, arrears of rent and mesne profits, Dagdulal Zumbarlal Bangad was the defendant. Said Dagdulal is father of the present petitioners. It is not in dispute that, throughout proceedings of the said suits, Dagdulal defended the proceedings as a tenant of the suit property and suffered decree passed in those suits. It is admitted position that, petitioner No.1 herein, did file writ petition before the High Court praying for regularization of encroachment over the suit property by him. Therefore, he understood his status as encroacher. It appears that, the entire case of the petitioners rest upon the documents produced by way of filing application under Order 41 Rule 27 of the Code of Civil Procedure in R.C.A. No. 64 of 2007 first time in appeal which was basically filed aggrieved by the rejection of the prayer of the petitioners from dispossessing them in pursuance of the execution of decree in R.C.S. No.227 of 1983 and 231 of 1983. It appears that, the petitioners herein, filed R.C.S. No. 79 of 2004 before the trial Court at Osmanabad. Said suit was filed since defendant No.1 issued notice to plaintiff No.1 directing him to vacate the suit premises described in Schedule 'A'. In view of dismissal of the said suit, plaintiffs i.e. petitioners herein, preferred appeal bearing R.C.A. No. 64 of 2007 in the District Court, Osmanabad in which first time, the application was filed under Order 41 Rule 27 of the Code of Civil Procedure for production of documents. However, the said appeal filed by the petitioners was allowed thereby setting aside the judgment and decree in R.C.S. No.79 of 2004 and the respondent No.1 was restrained from obstructing possession of the suit property at Osmanabad in front of Janta Sahkari Bank i.e., portion of Survey No.240 admeasuring 100 feet east west and 70 feet south north at present bounded by to the East back ward class boys' hostel, to the West Solapur-Aurangabad road, to the South Labour Welfare Centre-and to the North property of Shrirang Gundiba Kakade till the respondent obtains possession of the suit property by following due process of law as per provisions contained in Section 88(1) and Section 100A of Maharashtra Municipal Councils, Nagar Panchayats and Industrial Township Act, 1965. Therefore, limited protection was granted to the petitioners in the said appeal.
Respondent No.1 herein, did challenge the said judgment and order by filing second appeal. However, it appears that, second appeal was withdrawn since by that time, Resident Deputy Collector, Osmanabad passed order of eviction of the original respondent No.2 i.e. petitioner No.1 herein.
14. It appears that, Resident Deputy Collector, Osmanabad passed order directing eviction of Ramchandra Dagdulal Bangal, i.e., petitioner No.1 herein, being aggrieved by the said order, Regular Civil Appeal No.275 of 2010 was preferred and same was allowed by reversing judgment and order rendered by the Resident Deputy Collector directing eviction of the petitioner No.1 herein, under the provisions of Act of 1955. Said judgment and order in R.C.A. No.275 of 2010 was challenged in W.P. No. 7949 of 2011 by respondent No.1 before the High Court. In the said writ petition, High Court by judgment and order dated 29/02/2012 referred to the judgment and order in R.C.S. No. 227 of 1983 in paragraph-3 and also to other proceedings between the parties in paragraphs-4, 5 and 6. In paragraph-7 of the said judgment, High Court has adverted to the proceedings initiated by respondent No.1 before Deputy Collector, Osmanabad under the Act of 1965. In paragraph8 of the said judgment, this Court has considered the provisions of Section 88F and 100A of the Act of 1965. This Court in paragraphs8 and 9 of the said judgment has considered the submissions of the petitioner No.1 herein, that the observation in R.C.A. No.64 of 2007 has reached finality as Second Appeal No.368 of 2010 preferred by the Municipal Council is rejected on 21/12/2010 by this Court. In the said judgment, this Court has considered outcome of R.C.S. No.227 of 1983 and R.C.A. No.64 of 2007 in paragraphs-11, 12, 13, and 14. Paragraphs-10 to 14 from the said judgment are reproduced herein below:
"10. The basic theme in the matter has commenced by Municipal Council filing suit in the year 1984, referred above. The respondent no.2, or his father did not assert his rights as owner, or based on any title document he, in unequivocal terms, accepted ownership of the Municipal Council to the property and his old relationship as lessee. Consequently, under the law and, particularly, in terms of Section 116 of the Evidence Act, it is not open for respondent no.2 to challenge the authority of his landlord. Again, said judgment in RCS 227/1983, has reached finality as it is nowhere challenged by respondent no.2.
11. The suit filed by respondent no.2 was simpliciter for injunction. No question of title was involved or declaration of his title was solicited. In Regular Civil Appeal No.64/2007, production of unregistered sale deed was allowed. Learned Counsel submits, the sale deed could not be accepted to be registered as it was for an amount of Rs.96/and no registration was mandatorily required. Though this submission is glorious, however, difficult to digest. As sale deed of 4.2.1953, has seen light of the day for the first time in Appeal No.64/2007, that too by way of an application under Order 41 Rule 27 of Code of Civil Procedure, even if the said document is treated to be 30 years old, implying benefit of Section 90 of the Evidence Act. The law does not contemplate, such document never used since 1953, should be blindly accepted as a title document by presumption. The requirement of proof to contents of document, proper custody, handwriting of the maker needs to be established. Attestation has also to be proved. The learned District Judge committed an illegality to proceed with this sale deed.
12. The conduct of respondent no.2, as stated earlier, flows at least way back from 1983 in RCS No.227/1983, and he has been, thereafter, remitting municipal taxes, cess and rent to the Municipal Council without demur. Even if concession of earlier period from 1960 is extended, he has accepted that premises was let out to the grand father of respondent no.2 on eleven months' lease agreement.
13. In this scenario of the matter, the Municipal Council approaching the learned Deputy Collector for seeking possession of the property in question, cannot be branded as clothed with illegalities.
14. In the afore referred fact situation demonstrates that the property vests in the Municipal Council, as it was earlier so vesting, in the legal opinion. Even if it is referred to be in possession of the Government, that will not deflate rights of the Municipal Council as Section 88 sub clause (2) of Municipal Act takes precaution; whatsoever rights Municipal Council asserts, will be subject to clog created by Statute. However, for that purpose, respondent no.2 is not permitted under the law to challenge status, title and authority of the Municipal Council to seek possession from respondent no.2. The State and the Municipal Council are not at loggerheads on title of the property."
In paragraph15 of the said judgment, this Court has considered jurisdiction/power of Resident Deputy Collector and after considering rival contentions in paragraph-16 observed that, the order of the District Judge dated 12/04/2011 in R.C.A. No.275 of 2010 is quashed and set aside while order of the Resident Deputy Collector is restored.
15. Upon careful perusal of paragraphs-10 to 14 from the said judgment which are reproduced herein above, learned Single Judge of this Court has, in substance, dealt with the submissions of the present petitioners about their claim on suit property relying upon the alleged sale deed of 1953 and other documents which first time have seen the light of the day in the year 2007 in R.C.A. No.64 of 2007. Therefore, as long as suit of the petitioners is not decided finally, said observations/findings in the judgment of this Court in W.P. No.7949 of 2011, not accepting the claim of the petitioners relying upon the documents which were first time produced before the competent Court in the year 2007 in R.C.A. No. 64 of 2007, would remain in force. As already observed, father of the petitioner No.1 accepted his status as tenant of the suit property, petitioner No.1 herein, also accepted his status as encroacher on the suit property and now, by way of filing fresh suit, relying upon the alleged sale deed and will deed which was allegedly executed in the year 1953 and 1970, the petitioners i.e., original plaintiffs are claiming relief of temporary injunction against respondent No.1. When the order of eviction is already passed by the competent authority and which is confirmed not only by learned Single Judge of this Court in W.P. No.7949 of 2011 but by the Division Bench of the High Court upon considering the case on merits, in L.P.A. No. 87 of 2012.
16. Upon perusal of paragraph-5 from the judgment of Division Bench in L.P.A. No.87 of 2012, there is no doubt that, judgment and order dated 29/02/2012 passed by the learned Single Judge in the W.P. No.7949 of 2011 has been confirmed by the Division Bench with observations that, there is no error in the order of the learned Single Judge.
17. In the light of provisions of Order 39 Rule 1 and 2 of the Code of Civil Procedure, if the material placed on record is examined in its entirety, balance of convenience lies in favour of respondent No.1 who is a public body.
Therefore, taking into consideration concurrent findings of facts record by the courts below, which appears to be in consonance with the material placed on record, this Court is not inclined to interfere in the said concurrent findings of facts recorded by the Courts below. The findings recorded by the Courts below are in consonance with the material/documents placed on record and therefore, there is no reason to interfere in the judgment and order passed by the Courts below. As rightly contended by the learned Senior Counsel appearing for respondent No.1, relying upon authoritative pronouncement of the Supreme Court in the case of RanjeetSingh (supra), the High Court will not convert itself as Court of appeal and will indulge into re-appreciation and reevaluation of evidence or correcting errors in drawing inference like the Court of appeal. The very conduct of the plaintiffs i.e. petitioners herein, disentitles them from seeking any interim relief in view of the stand taken by their father and plaintiff No.1 in the earlier proceedings and now different stand taken by the plaintiffs in the present proceedings. Showing any indulgence or granting any relief in favour of the petitioners pending suit would be adding premium to the dishonest conduct of the plaintiffs of shifting their status from tenant to encroacher and thereafter, claiming declaratory reliefs relying upon the alleged sale deed of the year 1953 and will deed of the year 1970. Respondent No.1 is a local authority and public body and in its development, public element is involved and budgetary provision is made for construction of the suit property by the State Government. Therefore, if all the ingredients of Order 39 Rule 1 and 2 of the Code of Civil Procedure are considered, in the facts of the present case, certainly balance of convenience lies in favour of respondent No.1 and in case the petition is entertained, that would cause great prejudice to the interest of respondent No.1 and ultimately to the interest of public at large. This Court fully concurs with the findings recorded by the trial Court which are confirmed by the District Court. Therefore, those findings are not reiterated or reproduced.
18. For the aforesaid reasons, writ petition sans merit, hence rejected. Rule stands discharged.
At this stage, learned Counsel appearing for the petitioners prays for continuation of the order dated 23/09/2013 passed by the Adhoc District Judge1, Osmanabad below Exhibit-32 in Misc. Civil Appeal No. 100 of 2012 by which, District Court observed that, status-quo to continue for three weeks from 23/09/2013. Said order was continued by this Court till date.
Learned Counsel appearing for respondent No.1 vehemently opposed the prayer. He submits that, development is held up.
In the light of submissions made across the bar, prayer for continuation of the order passed by the Adhoc District Judge-1, Osmanabad dated 23/09/2013 stands rejected.