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2009 DIGILAW 1321 (BOM)

Ramakant R. Harmalkar v. Myra Muriel Loboe Paul

2009-10-05

A.H.JOSHI

body2009
JUDGMENT:- Rule. Rule is made returnable forthwith and is heard by consent. 2. This Writ Petition is filed by unsuccessful defendants. 3. Present respondent is original plaintiff. 4. The suit property is agricultural land locally known as "Oxel Vhal" and also "Santinacho Voll". 5. Admitted relation between the parties can be described as follows :- (a) Respondent is owner of suit land surveyed under No.31/1 which is identified as 'Oxel Vhal' and also 'Santinacho Vollo'. (b) In the entire transaction inter se of the parties, area of the suit property is not mentioned. (c) Area of property is shown in Forms I & XIV i.e. revenue record which is 16.25.95 - to be survey No.3111 part. (d) There is another property which is survey No.35 and its area is shown to be 00.28.75. (e) Both these properties are shown to be horticulture. (f) Survey No.31/1 is identified as 'Oxelvhal' and survey No.35 is shown as 'Bandhi Akh'. (g) Defendants/petitioners claim to be tenant of suit property. (h) The plaintiff executed in favour of defendant agreement of sale on 11.6.1984 (copy is at page 119). (i) The agreement discloses that the property 'Santinacho Vollo' is to be sold and agreed price is Rs.50.000/- amount advanced is Rs.25,000/-. J) This agreement of sale acknowledges that Ramnath Harmalkar who is the second party therein to be tenant thereof. (k) Plaintiff was all through out residing at Mumbai and has recently come to the village and wants to cultivate the suit land. 6. The plaintiff has executed power of attorney on 11.2.1989 for attending legal matters in relation to 'Santinacho Vollo'. 7. Plaintiff has not narrated as to what was the relationship of the parties before 1984 and between 1989. 8. It has not come on record from the pleadings of plaintiff whether at any time the power of attorney dated 11.2.1989 relating to land known as 'Santinacho Vollo' to which, the agreement of sales as well as the Power of attorney pertain are revoked or cancelled. 9. Admittedly, the second power of attorney is executed by plaintiff on 10.11.1994. This pertains to agricultural land situated at Aradi Oxel as is clearly seen in para 6 thereof. In this power of attorney a specific recital is made that it pertains to legal matters as well as for plucking coconut trees, mango trees existing therein and take those for him. 10. This pertains to agricultural land situated at Aradi Oxel as is clearly seen in para 6 thereof. In this power of attorney a specific recital is made that it pertains to legal matters as well as for plucking coconut trees, mango trees existing therein and take those for him. 10. It is seen that power of attorney dated 10.11.1994 is cancelled by advocate's notice dated 14.11.2002. 11. Plaintiff filed a complaint to police on account of refusal of defendant to return the power of attorney and plucking of fruits by defendants. In police complaint plaintiff has described the property situated at Aradi Oxel only. 12. Plaintiff claims that upon police complaint defendant stopped interfering in the suit property. 13. There is no dispute that suit properties are owned by plaintiffs and have been recorded in her name. 14. Defendant Ramakant claims that he has been extracting cashew fruits juice and has an excise licence in relation to cashew fruit juice which refers to the property' Santinacho Vollo', and copies thereof are placed on record. 15. Plaintiff sought to sell the suit property, and he has issued a public notice for that purpose on 6.3.2008. This notice was objected by defendants by raising written objections dated 13.3.2008 on the ground of tenancy. 16. The defendant then filed tenancy case on 3.4.2008 claiming to be tenant of 'Santinacho Vollo' and describing therein the said property to be admeasuring 48,000/- sq. meters and having survey No.31/1 part. 17. Claiming himself to be in possession and alleging obstruction, plaintiff bas filed a suit. Plaintiffs have relied upon the revenue records in Form Nos.1 & XIV, to support the claim of possession and states that the defendant is raising false claim of tenancy. 18. In the said suit plaintiff filed application for temporary injunction, claiming that she is in possession, as the power of attorney in favour of defendant No.1 was already cancelled. 19. The application for temporary injunction was opposed by the defendants who relied upon; (1) Agreement for Sale. (2) Registration of Properties (3) Copies of two Power of Attorney. (4) Affidavits of two witnesses working as Agriculture labour. (5) Copies of Inventory Proceedings No. 178/2003. (6) Excise licences. (7) Copies of proceedings filed before the Mamlatdar. 20. 19. The application for temporary injunction was opposed by the defendants who relied upon; (1) Agreement for Sale. (2) Registration of Properties (3) Copies of two Power of Attorney. (4) Affidavits of two witnesses working as Agriculture labour. (5) Copies of Inventory Proceedings No. 178/2003. (6) Excise licences. (7) Copies of proceedings filed before the Mamlatdar. 20. The Learned trial court found that the plaintiff's possession was not proved and hence answered point as to prima facie case, balance of convenience and irreparable loss etc. adverse to the plaintiff and rejected the application for temporary injunction. 21. Unsuccessful plaintiff preferred Miscellaneous Civil Appeal No.l/2009 and raised various ground, such as failure of trial court to consider the material on record etc.. 22. After hearing the learned District Court allowed the appeal by Judgment and Order dated 19.5.2009 and granted plaintiff's application for temporary injunction. 23. This order of allowing appeal and application for temporary injunction is challenged in present Writ Petition. 24. Points which are pressed in service before this court are summarised as follows :- (a) The scope of interference by the appellate court in the matter of exercise of discretion by the lower court, that normally the appellate Court would not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. Therefore, impugned judgment and order is in express breach of the principle laid down by the Apex Court in the case of Wander Limited and another Vs. Antox India Private Limited reported in 1990 (Supp.) SCC 727. (b) In the present case the appellate court has neither given any such reasons to substitute its own findings nor has gone into any such exercise after analysis to show as to how and why the trial court findings cannot be supported by the material on record. (c) In paragraph 1 of the written statement the petitioners had stated that in view of the provisions of the Tenancy Act, the civil Court could not have taken cognizance of the suit and could not have decided the matter. (c) In paragraph 1 of the written statement the petitioners had stated that in view of the provisions of the Tenancy Act, the civil Court could not have taken cognizance of the suit and could not have decided the matter. (d) The agreement dated 11.6.1984 does not mention that it is in respect of survey No.35/6 but shows that it is with respect to the property denominated as 'Santinicho Vollo' which is described under Item No.2 in the list of Assets in the Inventory Proceedings No.178/03 and which is surveyed under No.31/ 1. (e) The petitioners had clearly pleaded that the property described under No. 19734 includes not only the suit property surveyed under No.31/1 which is the hilly portion consisting of the cashew grove but also the coconut garden and the portion containing mango trees which is surveyed under No.35/6. (f) It is not the case of the plaintiff that the property 'Santinicho Vollo' mentioned in the said agreement is surveyed under No.35/6. 25. In order to test the grounds raised in the petition, this court has scrutinized the records and perused impugned judgment. 26. It is observed that the first appellate court has in the process of perusal of records drawn certain inferences which can be seen as follows :- (a) 10................................. . The agreement for sale could be with respect to the property bearing survey No.35/6 and not survey No.31/l. The said agreement was entered into with the defendants father by the mother of the plaintiff because admittedly the defendants father was the tenant in respect of the property bearing survey No.35/6 and that is the reason his name was found recorded in form Nos.I & XIV in the tenants column.......... (b) 12....................................When the plaintiff lodged police complaint, the defendants stopped interfering into the suit property. That means the possession of the property had gone into the hands of the plaintiff. (c) 13...................................Mere filing of an application for declaration of tenancy does not create tenancy rights in favour of the defendants. If at all the defendants were the tenant, why an application for declaration of tenancy was not filed earlier. They have also not produced any documentary evidence to show that they are the tenants. (d) 15.................................... (c) 13...................................Mere filing of an application for declaration of tenancy does not create tenancy rights in favour of the defendants. If at all the defendants were the tenant, why an application for declaration of tenancy was not filed earlier. They have also not produced any documentary evidence to show that they are the tenants. (d) 15.................................... When a party pleads to be tenant, firstly he has to spell out since when he is tenant, what is the rent and where and how the same is to be paid. The defendants have not prima facie established that they are the tenants. They have merely stated that they are the tenants. There are number of factors which compel to disbelieve the defendants. First they have not produced any documentary evidence of tenancy. Secondly why such an application was filed after a public notice of sale was published. Why no measures were taken when the Power of attorney was revoked and police complaint was lodged. Thirdly why believe the defendants to be tenants of entire property admeasuring 162559 sq. meters. When they themselves have pleaded 48000 sq. mts. (e) 16....................................Though the survey number is not mentioned on the said agreement nor the area of the property to be sold is not mentioned, by the name of the defendants father being recorded in the tenants column of survey No.35/6, it is clear that the said agreement was signed in respect of the property bearing survey No.35/6 and not survey No.31/1............................. (f) 20. Learned trial judge has also wrongly come to the conclusion that the agreement for sale entered between the father of the defendant no. 1 and the mother of the plaintiff was in respect of the entire property bearing survey No.31/1. However on the basis of the documents on record and more specifically the form Nos.1 & XIV it is certain that property bearing survey No.35/6 was agreed to be sold...................... (g) 24.................................. .Defendants have relied upon affidavits of two persons. One of the deponent is aged 67 years and the other is only shown as major in age. They have sworn affidavit about rent paid by the defendant. However in the affidavit it is not mentioned how they are aware of the fact of payment of rent. Whether they had seen the payment of rent. They have also not disclosed the source of information............ ' 27. They have sworn affidavit about rent paid by the defendant. However in the affidavit it is not mentioned how they are aware of the fact of payment of rent. Whether they had seen the payment of rent. They have also not disclosed the source of information............ ' 27. Perusal of record reveals that : (a) The fact that power of attorney pertains to 'Santinacho Vallo' is not shown to have been revoked. (b) The power of attorney dated 10.11.1994 pertains to 'Bandi Akh' and not relating to 'Santinacho Vollo'. (c) Letter dated 14.11.2002, cancelling the power of attorney does not even refer to property 'Bandi Akh' or property 'Santinacho Vallo'. (d) The police complaint dated 23.3.2003 pertains to Aradhi axel and not related to 'Santinacho Vallo'. (e) The agreement of sale dated 11.6.1984 with no ambiguity refer to the property 'Santinacho Vollo'. (f) The parties have no confusion on the identity of property. 28. This Court has tested rival submissions after perusal of record. Entire case of plaintiff is over-simplified. She pleads that she has cancelled the power of attorney, and lodged police complaint and defendant No.1 has stopped interfering and the plaintiff has thereby come in possession. This tell tale like story has to stand to the test of documents. 29. Plaintiffs' silence as to agreement of sale and Power of attorney relating to suit property speaks in volumes. She is showing General Power of Attorney and its cancellation about survey No.35 and is seeking injunction relating to survey No.31/1. This effort is of hide and seek. 30. In this back ground judgment of appellate court has suffered following defects:- (a) The learned appellate court has misled itself in reading the affidavits relied by tenants. (b) These affidavits were in respect of possession of the defendant. (c) One of the affidavits was related to payment of daily wages. (d) The learned appellate judge totally disbelieved the affidavits holding that those pertain to payment of rent and hence recorded the finding about these affidavits totally on imagination and contrary to record. (e) The appellate court has laboured under grave confusion about the facts and erred totally in reading of records. (f) Learned appellate judge has failed to read that there are two power of attorneys. (e) The appellate court has laboured under grave confusion about the facts and erred totally in reading of records. (f) Learned appellate judge has failed to read that there are two power of attorneys. (g) The second power of attorney pertains to survey No.35 which is some other land, and said power of attorney has been cancelled, and not the one relating to suit land. (h) First power of attorney pertains to 'Oxel Vhal' or 'Santinacho Vollo' and at no point of time the said power of attorney was cancelled. (i) The appellate court has given undue and excessive weightage to the area mentioned in the tenancy proceeding and totally discarded applicant's explanation that they had moved for its amendment. (j) The affidavits of defendants' witnesses are disbelieved without reading the contents as until the affidavits would not •say about rent the appellate judge has no reason to hold that the explanation as to source of information is not stated. (k) When the affidavits of the witnesses are limited they having shown the possession and cultivation, particularly when admittedly the defendants were cultivating and taking crop, there was nothing on record much less specific to the truthfullness to falsify the same. 31. In the present case the findings recorded by District Court are themselves contrary to records, and hence unsustainable. 32. In fact claim of defendants possession was apparent and no other conclusion was possible about it. This being so, to hold that plaintiff has a prima facie case is totally unjust and unsupported by facts. 33. The judgment of the learned District judge is based on fact finding based on inferences and conclusions, which have no factual foundation. 34. Normally the appellate court would be entitled to re-appreciate the evidence, and even to substitute the findings, holding that those are illegal. The findings sought to be substituted by appellate court must be sustainable on facts and law. 35. Sum effect which has led the conclusion reached by learned appellate judge is based on moral, a feeling that justice was in favour of plaintiff which perception is not sufficient in Jaw. 36. The findings sought to be substituted by appellate court must be sustainable on facts and law. 35. Sum effect which has led the conclusion reached by learned appellate judge is based on moral, a feeling that justice was in favour of plaintiff which perception is not sufficient in Jaw. 36. It may be too harsh to blame the judgment as based on surmises, it would however be perfectly within the limits and bounds of law to hold that the judgment does not have any factual support rather at various places it suffers from failure to read the documents and hence unsustainable. 37. Rule is made absolute accordingly with costs. Judgment and order passed by the District Court is set aside, order passed by trial court on the plaintiff's application for temporary injunction filed in trial court is revived. 38. This order shall operate after six weeks from today. Petition allowed.