Shri. Balekhan Ababalal Sonadi (Korabu) v. Smt. Hebjabi Shahabuddin Mulla (Mulani) And ORS
1 WP 446814.doc20
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4468 OF 2014 Shri Balekhan Ababalal Sonadi (Korabu).
] ... Petitioner/ (Orig. Plaintiff)
Versus
Smt. Hebjabi Shahabuddin Mulla (Mulani) ] and Ors.
] ... Respondents/ (Orig. Defendants) Mr. P. D. Dalvi for Petitioner.
Mr. Uday Warunjikar for Respondent Nos.1, 2 and 4. CORAM : M. S. SONAK, J.
DATE : APRIL 06, 2015 P. C. : 1.
This petition challenges the Order dated 13/03/2014 made by the District Judge1, Jaysingpur, allowing the Respondents' Appeal against Order dated 09/08/2012 under Order 39 Rules 1 and 2 of the CPC.
2.
By Order dated 09/08/2012, the Joint Civil Judge, Junior Division, Jaisingpur, had restrained the Respondents from interfering with the possession of the Petitioner over the suit property. The impugned order, sets aside the Order dated 09/08/2012. Hence the present Petition.
2 WP 446814.doc20 3.
Mr. P. D. Dalvi, the learned Counsel for Petitioner, submitted that the learned District Court failed to appreciate the scope and ambit of Appellate powers in matters where interlocutory orders are questioned. Appeal against interlocutory orders is an appeal on principle and there is no question of the Appeal Court reappreciating the material on record and arriving on some findings in variance with those arrived at by the trial Court. Further, Mr.Dalvi submitted that the document dated 14/09/2004, though not registered, was required to be looked into for the collateral purpose of establishing possession. Mr.Dalvi also submitted that the stamppaper on which the said document was executed was purchased by one of the Respondents and there is no explanation in this regard. For all these reasons, Mr.Dalvi submitted that the Appellate Court exceeded its jurisdiction in interfering with the wellreasoned order made by the trial Court on 09/08/2012.
4.
Having heard the learned Counsel for the parties and perused the impugned order as well as the record, in my judgment, there is no case made out to warrant interference with the impugned order. The trial Court, in its Order dated 09/08/2012, has recorded a primafacie finding that the document dated 14/09/2004 does not bear the thumb impression of Smt.Hebjabi Mulla, the Respondent No.1 herein. This finding was not questioned by the Petitioner by way of any crossobjection in the Appeal instituted by the Respondents. The Appeal Court has now confirmed this finding. Accordingly, there are concurrent findings to the effect that the said Smt.Hebjabi had not
3 WP 446814.doc20 put her thumb impression to the document dated 14/09/2004. This is relevant in the context of the defence raised by the Respondents that the Respondent No.1 never put her signature to the said document and that the other parties, put their signatures on a separate page which was then appended to the document in question. That apart, the 7/12 extract which has a presumptive value, indicates that the name of the Respondents not only in the Owner's column but also in the Cultivator's column. The Order dated 09/08/2012 incorrectly notes that the Respondents had not filed Affidavit in respect of their case. Such Affidavit had been filed on record. Besides, the document dated 14/09/2004, on the basis of which the Petitioner claims possession to the suit property, is admittedly an unregistered document. This is not a case of reliance upon the said document for collateral purposes. The Petitioner claims possession upon the suit property, on the basis of such document.
5.
In the aforesaid circumstances, it cannot be said that the Appeal Court has exceeded the jurisdiction vested in it or interfered with the Order dated 09/08/2012 only by reappreciating the material on record.
6.
The petition is therefore dismissed. There shall be no order as to costs.
(M. S. SONAK, J.)