SATISH SHIVAJI MALIversusVIKRAM VILAS DESHMUKH

                                                               WP 7853 25.odt

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CIRCUIT BENCH AT KOLHAPUR
                    CIVIL APPELLATE JURISDICTION

                     WRIT PETITION NO. 7853 OF 2025

1.   Satish Shivaji Mali,
     r/o. Peth, Tq. Walwa, Dist. Sangali

2.   Popat Shivaji Mali,
      R/o. Peth Tq. Walwa, Dist. Sangali.             …      Petitioners
                                                          (Orig. Plaintiffs)
     VERSUS

1.   Vikram Vilas Deshmukh,
     R/o. Shirala Tq. Shirala, Dist. Sangali.

2.   Satyajeet Sarjerao Patil
     R/o. Ozarde, Tq. Walwa, Dist. Sangali

3.   Arun Pandurang Hasabnis,
     R/o. Shirala, Tq. Shirala, Dist. Sangali.

4.   Asha Jayant Tonape,
     r/o. Somwar Peth, Karad, Tq. Karad,
     Dist. Satara.

5.   Unmesh Uday Hasabnis,
     R/o. Flat No. C 403, Vyankatesh Sharvil,
     S.No. 26/4/2, Near Pari Company, Dhayri,
     Vadgaon Budruk, Pune.

6.   Janaki Dhondiram Kulkarni,
     r/o. Near Parvati Garden Mangal Karyalaya,
     33/5, Rajesh Somraj Complex, Nale Colony,
     Kolhapur.

7.   Supriya Uday Hasabnis,
     r/o. Shirala Tq. Shirala, Dist. Sangali,

8.   Maruti Bapu Mali,
     R/o. Kapuskhed Naka, Mal Galli, Islampur,
     Tq. Walwa, Dist. Sangali.

9.   Shamrao Bapu Mali,
     R/o. Peth Golewadi, Tq. Walwa, Dist.

                                                                         1/8
                                                                 WP 7853 25.odt

     Islampur.

10. Deepak Raghunath Mali,
    r/o. Sharavati Building, Flat No. 7,
    Third Floor, Worli Sea Face, Khan Abdul Gafar Khan
    Road, Worli, Mumbai.                                 … Respondents
                                                           (Orig. Defts.)
                                       …
 Advocate for Petitioners : Mr. Prajakt M. Arjunwadkar a/w Adv. Dhananjay
     A. Utture, a/w Adv. Ritesh R. Raut and a/w Adv. Anway M. Mane.
     Advocate for Respondent nos. 1 to 7 : Mr. K. K. Sasavade a/w Adv.
  Rajwardhan K. Sasavade a/w Adv. Anees Mulla a/w Adv. Satyajit S. Patil
          Advocate for Respondent nos. 8 & 9 : Mr. Umesh Pawar
                                      ...
                      CORAM                : SHAILESH P. BRAHME, J.
                     RESERVED ON   :          18.08.2026
                     PRONOUNCED ON :          20.08.2026
JUDGMENT :

      Heard both sides finally.

2.    The petitioners are taking exception to the judgment and order dated

20.05.2025, passed in Misc. Civil Appeal No. 19/2025, reversing the order

of injunction passed below Exh. 5 in Regular Civil Suit No. 557/2024. The

respondents are defendants in suit filed by the petitioners for declaration

and injunction. The Trial Court granted temporary injunction restraining

respondent nos. 1 and 2 from obstructing peaceful possession of the

petitioners over the suit land. By impugned order it was reversed by the

lower Appellate Court.


3.    Learned counsel Mr. Arjunwadkar for the petitioners submits that the

predecessor in title of the petitioners was the tenants on the tillers day. In

the proceedings No. 152/1960, preferred under Section 32(G) of the


                                                                           2/8
                                                                  WP 7853 25.odt

Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter B.T.A.L. Act)

price was fixed and he was declared to be tenant purchaser vide order dated

03.03.1961.    Accordingly, mutation entry No. 25330 was effected.          No

convincing material is produced on record to challenge title and possession

of the petitioners.   A copy of order revoking earlier order passed on

03.10.1961 has not been produced on record. Mutation Entry No. 27418 is

inconsequential. It is submitted that the plea of the respondents that earlier

order was revoked is imaginary and should have been discarded by the

Appellate Court. It is further submitted that inference drawn by the

Appellate Court on the basis of release deed and mortgage deed is uncalled

for. It is further submitted that the theory of the respondent nos. 1 and 2

that order passed in 1961 was against dead person and nullity, has been

pressed into service for the first tine in the High Court. It is contended that

no case is made out showing handing over of possession by the petitioners

to respondents.


4.    Per contra, learned counsel for respondents submits that petitioners

suppressed material facts and order dated 03.10.1961 is nullity. Jankibai

Kulkarni and Jankibai Hasabnis were not alive at that time. It is vehemently

submitted that Case No. 162/1968 was filed by Pandurang Hasabnis and

earlier order dated 30.10.1962 in Case No. 162/1960 was revoked. The

mutation entry No. 27418 was not challenged by the petitioners. It is further

submitted that the petitioners failed to produce certificate under Section

32(M) or failed to produce the payment receipts of the purchase price.

                                                                            3/8
                                                                    WP 7853 25.odt

5.    It is submitted that the release deed and mortgage deed show that the

petitioners are not owners of the suit land. It is submitted that respondent

nos. 1 and 2 purchased the land from respondent nos. 3 to 7 for Rs.

32,00,000/- vide registered sale-deed executed on 29.01.2024. It is further

contended that in the consolidation proceedings also the petitioners’ name

are not disclosed. It is prayed that the writ petition is liable to be dismissed.


6.    There are conflicting findings on facts recorded by the Courts below.

The petitioners have placed on record the order passed in Tenancy Case No.

162/1960 by Additional Mamlatdar and A.L.T. under Section 32(G) of

B.T.A.L. Act in favour of Bapu Mahadu Mali, predecessor in title of the

petitioners fixing the price at Rs. 4973/-. The landlords are stated to be

Pandurang Raghunath Hasabnis and Jankibai Ramchandra Kulkarni in that

order. The mutation entry No. 25330 was effected pursuant to the order

passed by the Mamlatdar in Tenancy Case No. 162/1960 decided on

30.03.1961. The 7x12 extract would indicate tenants name in cultivation

column since 1965-1966. The material on record would prima facie indicate

that original tenant was conferred with title.


7.    While contesting the application Exh. 5 only plea of the respondents

was that Tenancy Case No. 162/1968 was decided and earlier order dated

30.10.1962 passed in Tenancy Case No. 162/1968 was revoked.                    In

pursuance of that mutation entry No. 27418 was recorded showing name of

the respondents no. 3 to 7. It was not pleaded that the original landlords



                                                                              4/8
                                                                 WP 7853 25.odt

Jankibai Hasabnis and Jankibai Kulkarni were not alive when the matter

was decided by Mamlatdar in Case No. 162/1960. Such a plea has been

raised for the first time in the High Court which cannot be countenanced. It

would be open for the respondents to make out such plea during the course

of trial.


8.     Interestingly, the decision in case of 160/1960 rendered under Section

32(G) of B.T.A.L. Act fixing price of Rs. 4973/- and the consequential

mutation entry No. 25330 have not been disputed by the respondents. The

copy of order passed in Tenancy Case No. 162/1968 has not been placed on

record.     A bold stand has been taken that orders passed in Case No.

162/1960 stood revoked by subsequently passed orders in Case No.

162/1968. In the absence of any tangible copy of the order, it is difficult to

fathom plea of the respondents. The lower Appellate Court committed error

of jurisdiction in accepting the theory. The reliance upon the mutation

entry No. 27418 in the absence of any tangible material is perversity. No

court would adopt such course.


9.     The respondents relied upon the release deed and the mortgage deed

disclosing that only ½ of the land from Gat No. 20 was vested with father of

the petitioners Shivaji. The documents are not consistent with the claim of

the petitioners but those would not enure to the respondent nos. 1 to 3, at

this juncture.   They will have to stand on their own legs, which they

miserably failed. The objective scrutiny is required to examine the purport



                                                                           5/8
                                                                   WP 7853 25.odt

of the documents. The lower Appellate Court reappreciated the material

and arrived at contrary conclusion. The power exercised by the Court would

not fall within the releam of Order XLIII of the Code of Civil Procedure.


10.   The respondent nos. 1 and 2 heavily relied upon the sale-deed

executed in their favour on 29.01.2024 on payment of Rs. 32,00,000/-, but

that itself would not be the ground to reverse the order of temporary

injunction. The title of the vendor of respondent nos. 1 and 2 is in dispute.

The intricate facts can be gone into after a full fledged trial.


11.   It needs to be taken into account that respondent nos. 1 to 7 are

banking upon order of Revenue Officer passed in Case No. 162/1968, albeit

its copy is not placed on record. By that decision earlier order is alleged to

have been revoked. If that is the case, then the respondents have to explain

as to how and when possession was secured from the petitioners or their

predecessor in title. There is no reference of any proceedings under Section

32(P) or 32(O) of the B.T.A.L. Act.         The claim of the respondents for

possession is unfounded. The petitioners have placed on record receipts of

sugarcane supplied to the sugar factory.         Their claim stands on better

footings than the respondents. I find that the impugned judgment of the

Appellate Court is unsustainable.


12.   The petitioners have made out prima facie case and showed

possession over the suit land. They may not be successful to show that they

are the exclusive owners of the suit land. There is a room to infer that

                                                                             6/8
                                                                  WP 7853 25.odt

respondent nos. 2 to 8 can be the co-sharers. The Trial Court, therefore,

rightly did not grant injunction to the petitioners against respondent nos. 8

to 10.


13.      The learned counsel for the respondents has placed on record

judgment of Mulji Umershi Shah Vs. Paradisia Builders Pvt. Ltd. and others;

(1997) 3 Mah LJ 532.         I have gone through paragraph no. 11 of the

judgment.      The facts of that case are distinguishable.    I have already

observed that the petitioners have made out a case of prima facie title to the

suit land. This judgment will not help the respondents.


14.      Further reliance is placed on Yashwant Hari Parit (since deceased)

through his Legal Heir Sandip Balkrishna Parit and others Vs. Sunita Ashok

Bhandare and others; (2020) 2 Mah L.J. 191, as well as judgment of

Supreme Court in case Vikram Bhalchandra Ghongade Vs. State of

Maharashtra and others; 2025 SCC OnLine SC 2360 to buttress that order

passed in favour or against the dead persons would be nullity.             The

proposition cannot be disputed. But in the case at hand, such a plea was not

pressed into service when the matter was before the Courts below. Such a

plea needs to be tested during the course of trial, so that the petitioners

would also get opportunity to deal with it. The judgments cannot be made

applicable to the present case.


15.      I find that applying the principles laid down by the Supreme Court in

the case of Wander Ltd. Vs. Antox India Pvt. Ltd. 1990 (Supp) SCC 727, the

                                                                            7/8
                                                                 WP 7853 25.odt

impugned judgment is unsustainable and interference is called for.           I,

therefore, pass following order.


                                        ORDER

A)      The Writ Petition is allowed.

B)      The judgment and order dated 20.05.2025 passed by District Judge-2
Islampur, District Sangali in Misc. Civil Appeal No. 19/2025 is quashed and
set aside and order dated 17.04.2025 passed below Exh. 5 in Regular Civil
Suit No. 557/2024, shall stand restored.

C)      There shall be no order as to costs.



                                          ( SHAILESH P. BRAHME, J.)




mkd/-




                                                                           8/8