Bombay High Court
Appa Bhimrao RaksheversusShivaji Bapu Powar
- Disposal
- Disposed off as Withdrawn
Holding
The appeal is withdrawn with liberty to the appellant to institute fresh proceedings, and the interim application is disposed of.
Summary
The appellant, Appa Bhimrao Rakshe, filed a second appeal under Section 100 of the CPC challenging a district court judgment that had reversed a trial court decree granting an injunction in his 2015 suit. The appellate court had set aside the decree on two grounds: that the suit property was involved in a pending civil appeal (raising the doctrine of lis pendens) and that the permission obtained under Section 43 of the Maharashtra Tenancy and Agricultural Lands Act for a 2004 sale deed had been cancelled. The appellant argued that the earlier appeal was dismissed in 2007, so lis pendens did not arise, and that the 2004 permission, if restored or validated under Section 84C, would make the sale deed effective. He sought leave to withdraw the second appeal and to pursue fresh proceedings to challenge the cancellation order. The High Court, after hearing counsel, granted liberty to withdraw the appeal and disposed of the interim application, leaving all substantive contentions open for any future suit.
Issues considered
- The applicability of the doctrine of lis pendens to the suit property given the earlier appeal's dismissal.
- Whether the permission under Section 43 of the Maharashtra Tenancy and Agricultural Lands Act, granted on 14‑07‑2004, remains valid despite its cancellation on 23‑11‑2005.
- The effect of a cancelled Section 43 permission on the validity of the 15‑07‑2004 sale deed.
- The appropriate remedy for the appellant to restore or validate the permission, including reliance on Section 84C of the Act.
Legislation cited
- Code of Civil Procedure, 1908 — s. 100
- Maharashtra Tenancy and Agricultural Lands Act, 1948 — s. 43, 84C
Subjects
- injunction
- lis pendens
- sale deed
- Section 43
- Section 84C
- withdrawal of appeal
- civil procedure
Judgment
906-SA-214-2026.docx
ARJUN
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
KRISHNA CIRCUIT BENCH AT KOLHAPUR
RODGE
Digitally signed
by ARJUN
KRISHNA RODGE
CIVIL APPELLATE JURISDICTION
Date: 2026.10.03
12:25:04 +0530
SECOND APPEAL NO. 214 OF 2026
WITH
INTERIM APPLICATION NO. 1471 OF 2026
IN
SECOND APPEAL NO. 214 OF 2026
Appa Bhimrao Rakshe
Age 63 years, Occ.: Agri,
R/o. Bahirewadi, Tal Ajara
District- Kolhapur ...Appellant
(Orig. Plaintiff)
Versus
1. Shivaji Bapu Powar
Age 68 years, Occ.: Agri,
2. Sambhaji Bapu Powar
Age 63 years, Occ.: Agri,
3. Kedari Bapu Powar
Age 66 years, Occ.: Agri,
4. Maruti Bapu Powar
Age 61 years, Occ.: Agri,
All R/o. Bahirewadi,
Tal-Ajara, Dist-Kolhapur. ...Respondents
(Orig. Defendants)
------
Mr. Shashank Mangale with Ashitosh Jambilkar, Prajakta Kamble, Omkar Korutkar
and Shubham Gangan i/by Sagar Mane, Advocate for the Appellant.
Arjun 1
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-------
CORAM : ASHWIN D. BHOBE, J.
DATE : 1st October 2026.
ORAL ORDER:
1. Heard Mr. Shashank Mangale, learned Advocate for the Appellant.
2. By this Second Appeal under Section 100 of the CPC, the Appellant
assails the Judgment and Decree dated 05.02.2026 (“Impugned Judgment”),
passed by the District Judge-1, Gadhinglaj (“Appellate Court”), in Regular Civil
Appeal No. 47 of 2023, which reversed the Judgment and Decree dated
25.09.2023, passed by the Civil Judge Junior Division, Ajara, District Kolhapur
(“Trial Court”) in Regular Civil Suit No. 35 of 2015, which decreed the Regular
Civil Suit No. 35 of 2015 filed by the Appellant.
3. The Appellant is the Plaintiff in Regular Civil Suit No. 35 of 2015 and
the Respondents are the Defendants.
4. Mr. Shashank Mangale, learned Advocate for the Appellant, submits
that the Regular Civil Suit No. 35 of 2015, filed by the Appellant, was a suit
simpliciter for an injunction. He further submits that the Appellate Court reversed
the Trial Court's decree on two grounds: (i) that the suit property was the subject
matter of dispute in a pending Regular Civil Appeal No. 11 of 2002, and
therefore, according to the Appellate Court, the issue of lis pendens arose; and (ii)
that the permission dated 14.7.2004, under Section 43 of the Maharashtra
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Tenancy and Agricultural Lands Act, 1948 (“M.T.A.L. Act”), granted for execution
of the Sale Deed bearing No.1006 of 2004 dated 15.07.2004 (Exhibit-45), was
subsequently cancelled by the Sub-Divisional Officer in proceedings bearing No.
798 of 2004 vide Order dated 23.11.2005.
5. Mr. Shashank Mangale, learned Advocate for the Appellant, submits
that the conclusion of the Appellate Court with regard to the issue of lis pendens
was factually incorrect, as the Regular Civil Appeal No. 11 of 2002 was dismissed
on 04.04.2007. Thus, the issue of lis pendens did not arise.
6. With reference to the issue relating to the Sale Deed dated 15.07.2004,
Mr. Shashank Mangale, learned Advocate for the Appellant, submits that the sale
of the suit property was backed by the required prior permission under Section 43
of the M.T.A.L. Act. To clarify, he submits that the permission was granted on
14.07.2004 and the sale was executed on 15.07.2004.
7. Mr. Shashank Mangale, learned Advocate for the Appellant, submits
that the permission dated 14.07.2004 was subsequently cancelled on 23.11.2005.
He further submits that if the said permission dated 14.07.2004 is restored, the
Sale Deed dated 15.07.2004 would be valid.
8. Mr. Shashank Mangale, learned Advocate for the Appellant, submits
that the Appellant did not take any steps against the Order dated 23.11.2005, on
the belief that once the parties had acted upon the permission dated 14.07.2004
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by executing the Sale Deed dated 15.07.2004, the said permission could not be
cancelled. He submits that the Appellant bonafide believed that upon the decree
in Regular Civil Suit No. 35 of 2015, the Order dated 23.11.2005 passed by the
Sub-Divisional Officer was not required to be challenged. He further submits that
the Sale Deed dated 15.07.2004 is not cancelled even as on date. The Appellant
has now realised and has been advised that the Order dated 23.11.2005 needs to
be challenged.
9. Mr. Shashank Mangale, learned Advocate for the Appellant, states that
the Appellant has two recourses available: First is to challenge the Order dated
23.11.2005, passed by the Sub-Divisional Officer in proceedings bearing No. 798
of 2004, by filing appropriate proceedings, and Second, to take recourse to the
provisions of Section 84C of M.T.A.L. Act. He submits that if the Appellant is able
to restore the permission dated 14.07.2004 or secure an order under Section 84C
of the M.T.A.L. Act, the Sale Deed dated 15.07.2004 would be validated and the
Appellant's rights in the suit property restored.
10. Mr. Shashank Mangale, learned Advocate for the Appellant, states that
the Appellant is present in Court. He identifies the Appellant and on the
instructions from the Appellant, seeks leave to withdraw this Second Appeal with
liberty to take appropriate steps available to the Appellant in terms of law,
particularly those referred to in paragraph No. 9 hereinabove.
11. In view of the statement made by Mr. Shashank Mangale, learned
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Advocate for the Appellant, leave is granted to withdraw this Second Appeal with
liberty as prayed.
12. Needless to mention, if the Appellant files fresh proceedings, then the
same would have to be considered on its own merit and in accordance with law.
13. All contentions of the parties are left open.
14. Second Appeal No. 214 of 2026, is disposed of as withdrawn.
15. In view of the disposal of the Second Appeal, nothing survives in
Interim Application No. 1471 of 2026, and the application is accordingly disposed
of.
(ASHWIN D. BHOBE, J.)
Arjun 5
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