In the present matter, the original plaintiff No.1
claimed that from the properties of the family, the suit property
had come to him while defendant Nos.1 to 3 claimed that it was
joint property which had not been divided. In such
circumstance, even if defendant Nos.1 to 3 sold what they
claimed to be their share to defendant Nos.4 and 5 during the
pendency of the suit, possession cannot be handed over by them
to the subsequent purchaser without following due procedure of
law. In the matter of "Gajara Vishnu Gosavi" (supra), Hon'ble
Supreme Court held that:-
"11. Thus, in view of the above, the law emerges to
the effect that in a given case an undivided share of a
co-parcener can be a subject matter of sale/ transfer,
but possession cannot be handed over to the vendee
unless the property is partitioned by metes and
bounds, either by the decree of a Court in a partition
suit, or by settlement among the co-sharers."
Thus, even if defendant Nos.1 to 3 could originally
claim to be in joint possession, the subsequent purchasers
cannot simply step into their shoes as far as regards joint
possession of the defendant Nos.4 and 5. They would have to
seek their own remedy. Once defendant Nos.1 to 3 have
admittedly given up their claim of joint possession by executing
the sale deed, the possession of plaintiff of the property, as
clearly appearing from the long standing 7/12 extracts, will have
to be protected. Plaintiffs do make out a prima facie case for
injunction in their favour. The appellants- plaintiffs, in the
application for temporary injunction to the District Judge, raised
apprehension that the defendant Nos.4 and 5 may enter their
names into record of rights on the basis of the alleged sale deeds
in respect of suit property. The plaintiffs expressed
apprehension that they may lose possession of suit property and
so, the defendant Nos.4 and 5 are required to be restrained by
issuing preventive injunction. Plaintiffs claimed that, balance of
convenience is in favour of plaintiffs and in the circumstances, if
injunction is not granted, they will suffer irreparable loss.
The injunction sought is only against respondent
Nos.4 and 5. Looking to the judgments of the Hon'ble Supreme
Court as above, such subsequent purchasers cannot simply push
in the property. The status of defendant Nos.1 to 3 as joint
owners claimed by them was different and cannot be compared
with defendant Nos.4 and 5, who may have purchased share of
defendant Nos.1 to 3. In fact, the suit of plaintiffs claiming that
suit property came to plaintiff No.1 is still in dispute, which is to
be decided in the appeal. Defendants themselves appear to have
claimed that there are other heirs like those of Krishnabai, who
are not made party. Still they appear to have calculated their
share and executed sale deed of undivided property. Even the
claim of defendant Nos.1 to 3 that suit property is joint, the
matter is still to be finally decided and there is no reason why
possession of plaintiffs should not be protected. If the plaintiffs
lose possession of suit property or part of it, (which has not been
divided by metes and bounds), plaintiffs would suffer irreparable
injury. In such circumstance, to avoid further litigation and
looking to the rival claims, balance of convenience lies in favour
of plaintiffs.
15. (A) For the above reasons, the Appeal is allowed with
costs. The impugned order passed by the District Judge is set
aside. Respondent Nos.4 and 5 are restrained by themselves or
anybody on their behalf, from disturbing possession of the
appellants in suit property till decision of Regular Civil Appeal
No.298/2013.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
APPEAL FROM ORDER NO.4 OF 2014 WITH
CIVIL APPLICATION NO.274 OF 2014
Baburao s/o Namdeo Nalwade,
VERSUS
Tukaram s/o Keshav Nalwade,
CORAM: A.I.S. CHEEMA, J.
DATED: 19th March, 2014.
Citation;2015(2) ALLMR277
1. This Appeal from Order is by the appellants/ original
plaintiffs (hereinafter referred to as plaintiffs). Regular Civil
Suit No.100/2000 filed by the plaintiffs against respondents
(original defendants) was for declaration and permanent
injunction. During the pendency of the suit, respondent Nos.4
and 5 (hereinafter referred to as the "subsequent purchasers")
purchased part of suit property and thus, they were added in the
suit as defendants No.4 and 5. The suit of the plaintiffs was
dismissed on 2.9.2013. The plaintiffs filed Regular Civil Appeal
No.298/2013 before the District Judge, Ahmednagar. In the
appeal, plaintiffs filed application for injunction pending the
appeal. The application came to be rejected on 18.11.2013 and
hence, the present Appeal from Impugned Order against
rejection of Temporary Injunction application.
2. Original plaintiff No.1 Baburao Namdeo Nalwade
expired during the pendency of the suit and his legal
representatives are on record. Plaintiff Nos.2 and 3 are his
children. Defendant No.1 Tukaram Keshav Nalwade, defendant
No.2 Bajirao Sonu Galande and defendant No.3 Kondabai Sonu
Galande also expired during the pendency of the suit and their
legal representatives were brought on record. I will refer to
these original defendants No.1 to 3 as "defendants". The family
tree as recorded by the trial Court in its judgment dated
2.9.2013 shows these parties claiming inheritance from
Bhimabai w/o Rama. It appears, Bhimabai had four daughters,
Parubai, Sarubai, Krishanabai and Thakubai. Plaintiff Baburao
was son of Thakubai while deceased defendant No.1 Tukaram
was son of Parubai and deceased defendant No.2 Bajirao was
son of Sarubai. Deceased Kondabai was daughter of Sarubai.
Judgment of the trial Court shows that, the original plaintiff No.1
brought the suit claiming that suit property situated at
Wangdari, Taluka Shrigonda came to him while other properties
had gone to Sarubai and Parubai. Plaintiffs claimed that
defendants never resided at Wangdari. It was claimed that, for
last about 50 years the suit property was in possession of
plaintiffs. Suit property is in possession of plaintiffs and names
of defendants remained in the ownership column. Suit was
amended and the plaintiffs contended that defendant Nos.4 and
5 are subsequent purchasers from defendants during pendency
of the suit. In spite of the sale deeds, the possession of suit
property is with the plaintiffs. Plaintiffs claimed that, the sale
deeds executed in favour of subsequent purchasers are not
binding on the plaintiffs.
3. The judgment of the trial Court further shows that,
stand taken by the defendants in written statement was that, all
the heirs of Krishnabai and Thakubai had not been made party.
The properties were of the four sisters. On the death of
Bhimabai, there was joint ownership and possession of the four
sisters, and after the death of the sisters, it was joint possession
of the plaintiffs and defendants. There was no reason for
separate possession of plaintiffs. Original defendants claimed
that the suit property is ancestral property of plaintiff No.1 and
defendants and they have undivided share in the same.
Defendants claimed that, it was difficult to take care of
properties by remaining outside the village and so, it was
decided that somebody should stay at Wangdari and so, plaintiff
No.1 started residing at Wangdari. Defendants and plaintiff No.
1 constructed house in the suit property and they were all jointly
in possession. The possession of plaintiffs and original
defendants was and is joint.
4. The parties went to trial with such pleadings, and for
reasons recorded by the trial Court, suit came to be dismissed.
In para 26 of the judgment, it was found that, the possession of
plaintiff was on behalf of all and that the plaintiff did not prove
that he was independently in possession and that his possession.
5. In the impugned order- para 9, District Judge
referred to the conclusions reached by trial Court that
appellants failed to prove their exclusive possession or that they
were exclusive owners. District Judge observed that this means
that the possession of plaintiffs or the appellants is common with
the other co-owners. District Judge observed that, the
respondent Nos.1 to 3 are not in possession of suit land as they
have already sold the same to respondent Nos.4 and 5 and,
therefore, if there would be any disturbance from the parties,
that may be from respondent Nos.4 and 5 only. District Judge
appears to have been impressed by the arguments that, coowners
cannot be restrained from entering or enjoying the
property to the extent of their share.
6. Learned counsel for the appellants/ plaintiffs
submitted that dispute relates to S.No.7, later S.No.2, then Gat
No.49 and then numbered as Gat No.33 of Wangdari. The
revenue record clearly shows that since many years the original
plaintiff No.1 has been in possession of the suit property, but in
the ownership column in addition to name of Thakubai, the
mother of plaintiff No.1, there was also name of other heirs of
Bhimabai. According to the learned counsel, defendant Nos.4
and 5 are admittedly subsequent purchasers and even if earlier
defendant Nos.1 to 3 were said to be co-owners, the subsequent
purchasers cannot be allowed to disturb possession of the
plaintiff. According to the learned counsel, the documents show
that the original plaintiffs are still in possession of suit property.
The learned counsel referred to the sale deeds which were
executed in favour of defendant Nos.4 and 5 to show that the
vendors of defendant Nos.4 and 5 themselves mentioned that, in
the possession column, names of plaintiffs are there and if
objection is raised regarding possession, the responsibility will
be on the vendor and vendee both. It has been argued that, the
appellants filed R.T.S. Appeal against the mutation entires made
in view of the sale deeds in favour of defendant Nos.4 and 5 and
names of the defendant Nos.4 and 5 have been kept in other
rights column. The Second Appeal filed by the defendant Nos.4
and 5 has been rejected and the defendant Nos.1 to 3 and
defendant Nos.4 and 5 had filed revision to Additional
Commissioner. According to the learned counsel for appellants,
the plaintiffs had filed application Exh. 5 to restrain defendants
from creating third party rights. However, the trial Court had
rejected the application and directed defendant Nos.2 and 3 not
to make alienation of suit property in excess of their share i.e.
1/4th share of suit property and that they "should not make
alienation of any specific property" out of suit property till final
disposal of the suit. Learned counsel submitted that, in spite of
such directions, the defendants Nos.1 to 3 executed sale deeds
in favour of defendant Nos.4 and 5. It is argued that, there is
nothing to show that plaintiffs were ever dispossessed. The
submission is that, even if it is held that the property was jointly
owned as ancestral property, still if any of the defendant Nos.1
to 3 having joint ownership, sold their share, the purchaser
cannot forcibly enter without seeking partition. Reliance is
placed on the case of Ramdas Vs. Sitabai & ors., reported in
2009 AIR (SC) 2735 and the judgment in the matter of Gajara
Vishnu Gosavi Vs. Prakash Nanasaheb Kamble & ors., reported
in 2009(10) SCC 654. Learned counsel also relied on the case of
Rame Gowda (D) by L.Rs. Vs. M. Varadappa Naidu (D) by L.Rs.,
reported in 2004 AIR (SC) 4609 to argue that when possession of
plaintiffs is settled possession since long, the same is required to
be protected till the rights are finally decided.
7. Learned counsel for the respondents submitted that,
even before the temporary injunction application was decided,
defendant Nos.4 and 5 had got the sale deed executed.
According to the learned counsel, the trial Court held the parties
to be co-owners. The learned counsel referred to Exhibit B, filed
with Civil Application No.273/2014 to state that, in the 7/12
extract, against names of the sisters, 72 R was mentioned and
thus, how much land was of each sister was clearly on record in
the ownership column. According to the learned counsel, only
because one of the co-owner was in possession on record does
not mean that the co-owners were not in possession. It is her
submission that, the defendant Nos.4 and 5 got possession in
view of the sale deed and no injunction could be issued against a
co-owner whether or not the co-owner was in possession. The
learned counsel submitted that, the judgments relied on by the
learned counsel for appellants relate to possession of
coparceners. It is her submission that, in the appeal, there was
no apprehension to claim temporary injunction. Whatever
orders the revenue authorities have passed are subject to orders
of civil suit. The learned counsel relied on the case of Kashi
Math Samsthan & anr. Vs. Srimad Sudhindra Thirtha Swamy &
anr., reported in 2010 AIR (SC) 296 to submit that if the parties
fail to prove prima facie case to go for trial, it is not open to the
Court to grant injunction in favour of such party even if balance
of convenience or irreparable loss or injury is shown. Learned
counsel also relied on the case of Best Sellers Retail (india) Pvt.
Ltd. Vs. Aditya Birla Nuvo Ltd. & ors., reported in 2012 AIR (SC)
2448 to submit that, even if prima facie case is there, balance of
convenience and irreparable injury has to be shown. Thus,
according to the learned counsel, there is no reason to grant
temporary injunction during pendency of the appeal before the
appellate Court.
8. In view of the record and arguments, the points for
my determination are :-
(1) Whether the appellants/ plaintiffs prove a prima
facie case for temporary injunction during pendency
of appeal ?
(2) Whether plaintiffs would suffer irreparable loss if
temporary injunction is not granted in their
favour ?
(3) Whether the balance of convenience lies in favour of
the appellants ?
My findings to all these points for consideration are
in affirmative.
9. There is no dispute regarding the fact that for many
years the name of the original plaintiff Baburao Namdeo
Nalwade, reflected in the 7/12 extract as in possession of the
suit property. Name of his mother Thakubai was in the
ownership column. On behalf of other sisters Krishnabai,
Sarubai and Parubai, the possession earlier was of Thakubai and
after her death, name of original plaintiff No.1 Baburao Namdeo
Nalwade appeared in the possession column since 1954-55. The
possession was as per "Reet 1", which indicates as owner.
Copies of the 7/12 extract have been filed with Civil Application
No.274/2014.
10. If the judgment of the trial Court is perused, it shows
that the pleadings of defendant Nos.1 to 3 itself were that, in
order to look after the property at Wangdari, it was decided that
somebody should stay at Wangdari and so, plaintiff No.1 started
residing at Wangdari. (The plaintiff claimed that the suit
property has come to him and other properties went to Sarubai
and Parubai and so he claimed declaration and injunction.)
Against this, defendant Nos.1 to 3 took a stand that the property
was ancestral and they had joint ownership in the same and so,
they claimed that they were jointly possessing it also. (This
dispute now is in appeal.) As per the trial Court judgment,
regarding possession, the written statement claimed that
defendants and plaintiffs had constructed house in the suit
property and were living there jointly. The judgment of the trial
Court shows that the Commissioner appointed in the matter had
reported that plaintiff was residing in the suit property after
constructing a house. Of course the trial Court ignored the
evidence on the basis that the Commissioner had not given
notice to the defendants.
11. At present, however, my concern is whether the
plaintiffs prima facie prove their possession as the rights are to
be finally settled in the appeal which is still pending. For this,
the documentary evidence as appearing from the record does
show that the plaintiff Baburao was in possession of the suit
property for long. Admittedly, defendant Nos.1 to 3, who could
claim to be joint owners as the property has come down from
ancestors, had a right which was different in nature to claim that
they should be treated as in joint possession irrespective of the
7/12 record, it was different not to grant injunction against such
co-owners as the defendant Nos.1 to 3.
12. However, the position as regards defendant Nos.4
and 5 is different. They are not of the family coming down from
deceased Bhimabai. Judgment in the matter of "Ramdas" (supra)
dealt with dispute relating to joint property where there are
undivided shares. In para 17, observations were :
"17. In view of the aforesaid position there could be
no dispute with regard to the fact that an undivided
share of co-sharer may be a subject matter of sale, but
possession cannot be handed over to the vendee unless
the property is partitioned by metes and bounds
amicably and through mutual settlement or by a decree
of the Court."
13. In the present matter, the original plaintiff No.1
claimed that from the properties of the family, the suit property
had come to him while defendant Nos.1 to 3 claimed that it was
joint property which had not been divided. In such
circumstance, even if defendant Nos.1 to 3 sold what they
claimed to be their share to defendant Nos.4 and 5 during the
pendency of the suit, possession cannot be handed over by them
to the subsequent purchaser without following due procedure of
law. In the matter of "Gajara Vishnu Gosavi" (supra), Hon'ble
Supreme Court held that:-
"11. Thus, in view of the above, the law emerges to
the effect that in a given case an undivided share of a
co-parcener can be a subject matter of sale/ transfer,
but possession cannot be handed over to the vendee
unless the property is partitioned by metes and
bounds, either by the decree of a Court in a partition
suit, or by settlement among the co-sharers."
Thus, even if defendant Nos.1 to 3 could originally
claim to be in joint possession, the subsequent purchasers
cannot simply step into their shoes as far as regards joint
possession of the defendant Nos.4 and 5. They would have to
seek their own remedy. Once defendant Nos.1 to 3 have
admittedly given up their claim of joint possession by executing
the sale deed, the possession of plaintiff of the property, as
clearly appearing from the long standing 7/12 extracts, will have
to be protected. Plaintiffs do make out a prima facie case for
injunction in their favour. The appellants- plaintiffs, in the
application for temporary injunction to the District Judge, raised
apprehension that the defendant Nos.4 and 5 may enter their
names into record of rights on the basis of the alleged sale deeds
in respect of suit property. The plaintiffs expressed
apprehension that they may lose possession of suit property and
so, the defendant Nos.4 and 5 are required to be restrained by
issuing preventive injunction. Plaintiffs claimed that, balance of
convenience is in favour of plaintiffs and in the circumstances, if
injunction is not granted, they will suffer irreparable loss.
14. The injunction sought is only against respondent
Nos.4 and 5. Looking to the judgments of the Hon'ble Supreme
Court as above, such subsequent purchasers cannot simply push
in the property. The status of defendant Nos.1 to 3 as joint
owners claimed by them was different and cannot be compared
with defendant Nos.4 and 5, who may have purchased share of
defendant Nos.1 to 3. In fact, the suit of plaintiffs claiming that
suit property came to plaintiff No.1 is still in dispute, which is to
be decided in the appeal. Defendants themselves appear to have
claimed that there are other heirs like those of Krishnabai, who
are not made party. Still they appear to have calculated their
share and executed sale deed of undivided property. Even the
claim of defendant Nos.1 to 3 that suit property is joint, the
matter is still to be finally decided and there is no reason why
possession of plaintiffs should not be protected. If the plaintiffs
lose possession of suit property or part of it, (which has not been
divided by metes and bounds), plaintiffs would suffer irreparable
injury. In such circumstance, to avoid further litigation and
looking to the rival claims, balance of convenience lies in favour
of plaintiffs.
15. (A) For the above reasons, the Appeal is allowed with
costs. The impugned order passed by the District Judge is set
aside. Respondent Nos.4 and 5 are restrained by themselves or
anybody on their behalf, from disturbing possession of the
appellants in suit property till decision of Regular Civil Appeal
No.298/2013. Hearing of the Appeal is expedited.
(B) As Appeal from Order is disposed, Civil Application
No.274/2014 does not survive and is disposed of accordingly.
(C) Observations in this judgment relating to facts will
be treated as prima facie to decide this Appeal from Order.
(A.I.S. CHEEMA, J.)
claimed that from the properties of the family, the suit property
had come to him while defendant Nos.1 to 3 claimed that it was
joint property which had not been divided. In such
circumstance, even if defendant Nos.1 to 3 sold what they
claimed to be their share to defendant Nos.4 and 5 during the
pendency of the suit, possession cannot be handed over by them
to the subsequent purchaser without following due procedure of
law. In the matter of "Gajara Vishnu Gosavi" (supra), Hon'ble
Supreme Court held that:-
"11. Thus, in view of the above, the law emerges to
the effect that in a given case an undivided share of a
co-parcener can be a subject matter of sale/ transfer,
but possession cannot be handed over to the vendee
unless the property is partitioned by metes and
bounds, either by the decree of a Court in a partition
suit, or by settlement among the co-sharers."
Thus, even if defendant Nos.1 to 3 could originally
claim to be in joint possession, the subsequent purchasers
cannot simply step into their shoes as far as regards joint
possession of the defendant Nos.4 and 5. They would have to
seek their own remedy. Once defendant Nos.1 to 3 have
admittedly given up their claim of joint possession by executing
the sale deed, the possession of plaintiff of the property, as
clearly appearing from the long standing 7/12 extracts, will have
to be protected. Plaintiffs do make out a prima facie case for
injunction in their favour. The appellants- plaintiffs, in the
application for temporary injunction to the District Judge, raised
apprehension that the defendant Nos.4 and 5 may enter their
names into record of rights on the basis of the alleged sale deeds
in respect of suit property. The plaintiffs expressed
apprehension that they may lose possession of suit property and
so, the defendant Nos.4 and 5 are required to be restrained by
issuing preventive injunction. Plaintiffs claimed that, balance of
convenience is in favour of plaintiffs and in the circumstances, if
injunction is not granted, they will suffer irreparable loss.
The injunction sought is only against respondent
Nos.4 and 5. Looking to the judgments of the Hon'ble Supreme
Court as above, such subsequent purchasers cannot simply push
in the property. The status of defendant Nos.1 to 3 as joint
owners claimed by them was different and cannot be compared
with defendant Nos.4 and 5, who may have purchased share of
defendant Nos.1 to 3. In fact, the suit of plaintiffs claiming that
suit property came to plaintiff No.1 is still in dispute, which is to
be decided in the appeal. Defendants themselves appear to have
claimed that there are other heirs like those of Krishnabai, who
are not made party. Still they appear to have calculated their
share and executed sale deed of undivided property. Even the
claim of defendant Nos.1 to 3 that suit property is joint, the
matter is still to be finally decided and there is no reason why
possession of plaintiffs should not be protected. If the plaintiffs
lose possession of suit property or part of it, (which has not been
divided by metes and bounds), plaintiffs would suffer irreparable
injury. In such circumstance, to avoid further litigation and
looking to the rival claims, balance of convenience lies in favour
of plaintiffs.
15. (A) For the above reasons, the Appeal is allowed with
costs. The impugned order passed by the District Judge is set
aside. Respondent Nos.4 and 5 are restrained by themselves or
anybody on their behalf, from disturbing possession of the
appellants in suit property till decision of Regular Civil Appeal
No.298/2013.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
APPEAL FROM ORDER NO.4 OF 2014 WITH
CIVIL APPLICATION NO.274 OF 2014
Baburao s/o Namdeo Nalwade,
VERSUS
Tukaram s/o Keshav Nalwade,
CORAM: A.I.S. CHEEMA, J.
DATED: 19th March, 2014.
Citation;2015(2) ALLMR277
1. This Appeal from Order is by the appellants/ original
plaintiffs (hereinafter referred to as plaintiffs). Regular Civil
Suit No.100/2000 filed by the plaintiffs against respondents
(original defendants) was for declaration and permanent
injunction. During the pendency of the suit, respondent Nos.4
and 5 (hereinafter referred to as the "subsequent purchasers")
purchased part of suit property and thus, they were added in the
suit as defendants No.4 and 5. The suit of the plaintiffs was
dismissed on 2.9.2013. The plaintiffs filed Regular Civil Appeal
No.298/2013 before the District Judge, Ahmednagar. In the
appeal, plaintiffs filed application for injunction pending the
appeal. The application came to be rejected on 18.11.2013 and
hence, the present Appeal from Impugned Order against
rejection of Temporary Injunction application.
2. Original plaintiff No.1 Baburao Namdeo Nalwade
expired during the pendency of the suit and his legal
representatives are on record. Plaintiff Nos.2 and 3 are his
children. Defendant No.1 Tukaram Keshav Nalwade, defendant
No.2 Bajirao Sonu Galande and defendant No.3 Kondabai Sonu
Galande also expired during the pendency of the suit and their
legal representatives were brought on record. I will refer to
these original defendants No.1 to 3 as "defendants". The family
tree as recorded by the trial Court in its judgment dated
2.9.2013 shows these parties claiming inheritance from
Bhimabai w/o Rama. It appears, Bhimabai had four daughters,
Parubai, Sarubai, Krishanabai and Thakubai. Plaintiff Baburao
was son of Thakubai while deceased defendant No.1 Tukaram
was son of Parubai and deceased defendant No.2 Bajirao was
son of Sarubai. Deceased Kondabai was daughter of Sarubai.
Judgment of the trial Court shows that, the original plaintiff No.1
brought the suit claiming that suit property situated at
Wangdari, Taluka Shrigonda came to him while other properties
had gone to Sarubai and Parubai. Plaintiffs claimed that
defendants never resided at Wangdari. It was claimed that, for
last about 50 years the suit property was in possession of
plaintiffs. Suit property is in possession of plaintiffs and names
of defendants remained in the ownership column. Suit was
amended and the plaintiffs contended that defendant Nos.4 and
5 are subsequent purchasers from defendants during pendency
of the suit. In spite of the sale deeds, the possession of suit
property is with the plaintiffs. Plaintiffs claimed that, the sale
deeds executed in favour of subsequent purchasers are not
binding on the plaintiffs.
3. The judgment of the trial Court further shows that,
stand taken by the defendants in written statement was that, all
the heirs of Krishnabai and Thakubai had not been made party.
The properties were of the four sisters. On the death of
Bhimabai, there was joint ownership and possession of the four
sisters, and after the death of the sisters, it was joint possession
of the plaintiffs and defendants. There was no reason for
separate possession of plaintiffs. Original defendants claimed
that the suit property is ancestral property of plaintiff No.1 and
defendants and they have undivided share in the same.
Defendants claimed that, it was difficult to take care of
properties by remaining outside the village and so, it was
decided that somebody should stay at Wangdari and so, plaintiff
No.1 started residing at Wangdari. Defendants and plaintiff No.
1 constructed house in the suit property and they were all jointly
in possession. The possession of plaintiffs and original
defendants was and is joint.
4. The parties went to trial with such pleadings, and for
reasons recorded by the trial Court, suit came to be dismissed.
In para 26 of the judgment, it was found that, the possession of
plaintiff was on behalf of all and that the plaintiff did not prove
that he was independently in possession and that his possession.
5. In the impugned order- para 9, District Judge
referred to the conclusions reached by trial Court that
appellants failed to prove their exclusive possession or that they
were exclusive owners. District Judge observed that this means
that the possession of plaintiffs or the appellants is common with
the other co-owners. District Judge observed that, the
respondent Nos.1 to 3 are not in possession of suit land as they
have already sold the same to respondent Nos.4 and 5 and,
therefore, if there would be any disturbance from the parties,
that may be from respondent Nos.4 and 5 only. District Judge
appears to have been impressed by the arguments that, coowners
cannot be restrained from entering or enjoying the
property to the extent of their share.
6. Learned counsel for the appellants/ plaintiffs
submitted that dispute relates to S.No.7, later S.No.2, then Gat
No.49 and then numbered as Gat No.33 of Wangdari. The
revenue record clearly shows that since many years the original
plaintiff No.1 has been in possession of the suit property, but in
the ownership column in addition to name of Thakubai, the
mother of plaintiff No.1, there was also name of other heirs of
Bhimabai. According to the learned counsel, defendant Nos.4
and 5 are admittedly subsequent purchasers and even if earlier
defendant Nos.1 to 3 were said to be co-owners, the subsequent
purchasers cannot be allowed to disturb possession of the
plaintiff. According to the learned counsel, the documents show
that the original plaintiffs are still in possession of suit property.
The learned counsel referred to the sale deeds which were
executed in favour of defendant Nos.4 and 5 to show that the
vendors of defendant Nos.4 and 5 themselves mentioned that, in
the possession column, names of plaintiffs are there and if
objection is raised regarding possession, the responsibility will
be on the vendor and vendee both. It has been argued that, the
appellants filed R.T.S. Appeal against the mutation entires made
in view of the sale deeds in favour of defendant Nos.4 and 5 and
names of the defendant Nos.4 and 5 have been kept in other
rights column. The Second Appeal filed by the defendant Nos.4
and 5 has been rejected and the defendant Nos.1 to 3 and
defendant Nos.4 and 5 had filed revision to Additional
Commissioner. According to the learned counsel for appellants,
the plaintiffs had filed application Exh. 5 to restrain defendants
from creating third party rights. However, the trial Court had
rejected the application and directed defendant Nos.2 and 3 not
to make alienation of suit property in excess of their share i.e.
1/4th share of suit property and that they "should not make
alienation of any specific property" out of suit property till final
disposal of the suit. Learned counsel submitted that, in spite of
such directions, the defendants Nos.1 to 3 executed sale deeds
in favour of defendant Nos.4 and 5. It is argued that, there is
nothing to show that plaintiffs were ever dispossessed. The
submission is that, even if it is held that the property was jointly
owned as ancestral property, still if any of the defendant Nos.1
to 3 having joint ownership, sold their share, the purchaser
cannot forcibly enter without seeking partition. Reliance is
placed on the case of Ramdas Vs. Sitabai & ors., reported in
2009 AIR (SC) 2735 and the judgment in the matter of Gajara
Vishnu Gosavi Vs. Prakash Nanasaheb Kamble & ors., reported
in 2009(10) SCC 654. Learned counsel also relied on the case of
Rame Gowda (D) by L.Rs. Vs. M. Varadappa Naidu (D) by L.Rs.,
reported in 2004 AIR (SC) 4609 to argue that when possession of
plaintiffs is settled possession since long, the same is required to
be protected till the rights are finally decided.
7. Learned counsel for the respondents submitted that,
even before the temporary injunction application was decided,
defendant Nos.4 and 5 had got the sale deed executed.
According to the learned counsel, the trial Court held the parties
to be co-owners. The learned counsel referred to Exhibit B, filed
with Civil Application No.273/2014 to state that, in the 7/12
extract, against names of the sisters, 72 R was mentioned and
thus, how much land was of each sister was clearly on record in
the ownership column. According to the learned counsel, only
because one of the co-owner was in possession on record does
not mean that the co-owners were not in possession. It is her
submission that, the defendant Nos.4 and 5 got possession in
view of the sale deed and no injunction could be issued against a
co-owner whether or not the co-owner was in possession. The
learned counsel submitted that, the judgments relied on by the
learned counsel for appellants relate to possession of
coparceners. It is her submission that, in the appeal, there was
no apprehension to claim temporary injunction. Whatever
orders the revenue authorities have passed are subject to orders
of civil suit. The learned counsel relied on the case of Kashi
Math Samsthan & anr. Vs. Srimad Sudhindra Thirtha Swamy &
anr., reported in 2010 AIR (SC) 296 to submit that if the parties
fail to prove prima facie case to go for trial, it is not open to the
Court to grant injunction in favour of such party even if balance
of convenience or irreparable loss or injury is shown. Learned
counsel also relied on the case of Best Sellers Retail (india) Pvt.
Ltd. Vs. Aditya Birla Nuvo Ltd. & ors., reported in 2012 AIR (SC)
2448 to submit that, even if prima facie case is there, balance of
convenience and irreparable injury has to be shown. Thus,
according to the learned counsel, there is no reason to grant
temporary injunction during pendency of the appeal before the
appellate Court.
8. In view of the record and arguments, the points for
my determination are :-
(1) Whether the appellants/ plaintiffs prove a prima
facie case for temporary injunction during pendency
of appeal ?
(2) Whether plaintiffs would suffer irreparable loss if
temporary injunction is not granted in their
favour ?
(3) Whether the balance of convenience lies in favour of
the appellants ?
My findings to all these points for consideration are
in affirmative.
9. There is no dispute regarding the fact that for many
years the name of the original plaintiff Baburao Namdeo
Nalwade, reflected in the 7/12 extract as in possession of the
suit property. Name of his mother Thakubai was in the
ownership column. On behalf of other sisters Krishnabai,
Sarubai and Parubai, the possession earlier was of Thakubai and
after her death, name of original plaintiff No.1 Baburao Namdeo
Nalwade appeared in the possession column since 1954-55. The
possession was as per "Reet 1", which indicates as owner.
Copies of the 7/12 extract have been filed with Civil Application
No.274/2014.
10. If the judgment of the trial Court is perused, it shows
that the pleadings of defendant Nos.1 to 3 itself were that, in
order to look after the property at Wangdari, it was decided that
somebody should stay at Wangdari and so, plaintiff No.1 started
residing at Wangdari. (The plaintiff claimed that the suit
property has come to him and other properties went to Sarubai
and Parubai and so he claimed declaration and injunction.)
Against this, defendant Nos.1 to 3 took a stand that the property
was ancestral and they had joint ownership in the same and so,
they claimed that they were jointly possessing it also. (This
dispute now is in appeal.) As per the trial Court judgment,
regarding possession, the written statement claimed that
defendants and plaintiffs had constructed house in the suit
property and were living there jointly. The judgment of the trial
Court shows that the Commissioner appointed in the matter had
reported that plaintiff was residing in the suit property after
constructing a house. Of course the trial Court ignored the
evidence on the basis that the Commissioner had not given
notice to the defendants.
11. At present, however, my concern is whether the
plaintiffs prima facie prove their possession as the rights are to
be finally settled in the appeal which is still pending. For this,
the documentary evidence as appearing from the record does
show that the plaintiff Baburao was in possession of the suit
property for long. Admittedly, defendant Nos.1 to 3, who could
claim to be joint owners as the property has come down from
ancestors, had a right which was different in nature to claim that
they should be treated as in joint possession irrespective of the
7/12 record, it was different not to grant injunction against such
co-owners as the defendant Nos.1 to 3.
12. However, the position as regards defendant Nos.4
and 5 is different. They are not of the family coming down from
deceased Bhimabai. Judgment in the matter of "Ramdas" (supra)
dealt with dispute relating to joint property where there are
undivided shares. In para 17, observations were :
"17. In view of the aforesaid position there could be
no dispute with regard to the fact that an undivided
share of co-sharer may be a subject matter of sale, but
possession cannot be handed over to the vendee unless
the property is partitioned by metes and bounds
amicably and through mutual settlement or by a decree
of the Court."
13. In the present matter, the original plaintiff No.1
claimed that from the properties of the family, the suit property
had come to him while defendant Nos.1 to 3 claimed that it was
joint property which had not been divided. In such
circumstance, even if defendant Nos.1 to 3 sold what they
claimed to be their share to defendant Nos.4 and 5 during the
pendency of the suit, possession cannot be handed over by them
to the subsequent purchaser without following due procedure of
law. In the matter of "Gajara Vishnu Gosavi" (supra), Hon'ble
Supreme Court held that:-
"11. Thus, in view of the above, the law emerges to
the effect that in a given case an undivided share of a
co-parcener can be a subject matter of sale/ transfer,
but possession cannot be handed over to the vendee
unless the property is partitioned by metes and
bounds, either by the decree of a Court in a partition
suit, or by settlement among the co-sharers."
Thus, even if defendant Nos.1 to 3 could originally
claim to be in joint possession, the subsequent purchasers
cannot simply step into their shoes as far as regards joint
possession of the defendant Nos.4 and 5. They would have to
seek their own remedy. Once defendant Nos.1 to 3 have
admittedly given up their claim of joint possession by executing
the sale deed, the possession of plaintiff of the property, as
clearly appearing from the long standing 7/12 extracts, will have
to be protected. Plaintiffs do make out a prima facie case for
injunction in their favour. The appellants- plaintiffs, in the
application for temporary injunction to the District Judge, raised
apprehension that the defendant Nos.4 and 5 may enter their
names into record of rights on the basis of the alleged sale deeds
in respect of suit property. The plaintiffs expressed
apprehension that they may lose possession of suit property and
so, the defendant Nos.4 and 5 are required to be restrained by
issuing preventive injunction. Plaintiffs claimed that, balance of
convenience is in favour of plaintiffs and in the circumstances, if
injunction is not granted, they will suffer irreparable loss.
14. The injunction sought is only against respondent
Nos.4 and 5. Looking to the judgments of the Hon'ble Supreme
Court as above, such subsequent purchasers cannot simply push
in the property. The status of defendant Nos.1 to 3 as joint
owners claimed by them was different and cannot be compared
with defendant Nos.4 and 5, who may have purchased share of
defendant Nos.1 to 3. In fact, the suit of plaintiffs claiming that
suit property came to plaintiff No.1 is still in dispute, which is to
be decided in the appeal. Defendants themselves appear to have
claimed that there are other heirs like those of Krishnabai, who
are not made party. Still they appear to have calculated their
share and executed sale deed of undivided property. Even the
claim of defendant Nos.1 to 3 that suit property is joint, the
matter is still to be finally decided and there is no reason why
possession of plaintiffs should not be protected. If the plaintiffs
lose possession of suit property or part of it, (which has not been
divided by metes and bounds), plaintiffs would suffer irreparable
injury. In such circumstance, to avoid further litigation and
looking to the rival claims, balance of convenience lies in favour
of plaintiffs.
15. (A) For the above reasons, the Appeal is allowed with
costs. The impugned order passed by the District Judge is set
aside. Respondent Nos.4 and 5 are restrained by themselves or
anybody on their behalf, from disturbing possession of the
appellants in suit property till decision of Regular Civil Appeal
No.298/2013. Hearing of the Appeal is expedited.
(B) As Appeal from Order is disposed, Civil Application
No.274/2014 does not survive and is disposed of accordingly.
(C) Observations in this judgment relating to facts will
be treated as prima facie to decide this Appeal from Order.
(A.I.S. CHEEMA, J.)
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