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ORDER BELOW EXH. 05 IN RCS NO. 25/2017.
03 The defendant No.1, 3 to 6 have filed their written
statement at Exh.26. The defendant No.2 has adopted said
written statement by filing pursis (Exh.32). They have denied
the suit claim in toto. It is their contention that plaintiffs have
3 R.C.S.No.25/2017 (Exh.5)
R E A S O N S
AS TO POINT NOS. 1 TO 3 :
disposal of suit by issuing temporary injunction. He has relied
upon mutation entry No.2089, 7/12 extract of gat no. 688
(Exh.5), copy of RTS Appeal filed against mutation entry
No.7530, mutation entry No.7530, 7546, copy of order of
Tahasildar.
06 On the contrary, learned advocate S.B. Salunkhe for
defendants has submitted that plaintiffs have not filed present
suit with clean hands. Plaintiffs have wrongly mentioned age of
defendant no.1 to 5 and they have not given proper genealogy
and correct name of defendant no.6. He has further submitted
that plaintiffs and defendant No.6 have relinquished their right
by oral Hibba in favour of defendants in presence two
witnesses namely, Jainuddin Babulal Mujawar and Shabuddin
Abbas Mujawar in the year 1988. Therefore, the plaintiffs have
no right in the suit property. He has further submitted that
defendant No.4 has executed sale deed for purchasing house
property. There is nothing on record to show that other
defendants are creating third party interest over the suit
property. Lastly, prayed that application be rejected with costs.
07 Thus, having consideration of the above submission,
I hold that, in order to decide the present application, it is
6 R.C.S.No.25/2017 (Exh.5)
required to be seen whether plaintiffs have made out prima
facie case or not ? In support of their contentions, the
plaintiffs have produced mutation entry No.2089, 7/12 extract
of gat no. 688 (Exh.5), copy of RTS Appeal filed against
mutation entry No.7530, mutation entry No.7530, 7546, copy
of order of Tahasildar. On perusal of mutation entry No. 2089
it shows that the names of plaintiffs and defendant No.6 are
appeared in other right column of the suit property. But,
defendants have come with the case that plaintiffs and
defendant No.6 have relinquished their right in the year 1988
by way of oral Hibba in presence of two panch witnesses. In
such situation, whether plaintiffs have relinquished their right
in the year 1988 by oral Hibba or not ? this issue is required to
be decided after evidence of both parties.
facie binding upon on both parties. So far as mutation entry
No. 7546 is concerned, the said mutation entry is regarding
sale deed between defendant No.3 and 4. The same was also
challenged by plaintiffs before SubDivisional officer, Miraj.
The plaintiffs have challenged both mutation entries in the
year 2015. But the present suit is filed in the year 2017. There
is nothing on record to show that defendants are creating
third party interest after mutation entry No.7546 over the suit
property. The plaintiffs have not filed any public notice or any
document to show prima facie that defendants are trying to
create third party interest over the suit property. The conduct
of the plaintiffs, shows that they have not filed present suit
immediately after death of Abalal, or passing of mutation entry
No. 7530. This fact cast doubt about the case of plaintiffs. They
have not filed present suit with clean hands. In such situation,
plaintiffs have failed to prove that they are having prima facie
case in their favour.
09 From the available material on record, at this stage,
I am of the opinion that the rights and interest of the plaintiffs
is adequately protected by Sec.52 of the T.P. Act.
ORDER
1. Application (Exh.5) stands rejected.
2. Costs in the main cause.
Date : 21012019 [Manoj C. Nepte]
Jt. Civil Judge, Junior Division,
KavatheMahankal. Kavthemahankal.