1 wp1964.15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 1964 OF 2015
1] Smt. Gayabai Dopaji Naitam,
aged about 66 years, Occ. Agriculturist (Labour)
2] Mahadeo Dopaji Naitam,
aged 38 years, Occ. Agriculturist (Labour);
3] Purshottam Dopaji Naitam,
aged 34 years, Occ. Agriculturist (Labour)
Petitioner Nos. 1 to 3 through their
power of attorney holder Smt. Sarita
` Mahadeo Naitam.
4] Sau. Sarita Mahadeo Naitam,
aged 31 years, Occ. Agriculturist (Labour),
All R/o. Janala, Post Bhagwanpur,
Tq. Mul, Distt. Chandrapur...... PETITIONERS
...VERSUS...
Smt. Manjubai Dopaji Natiam
(Smt. Manjulabai Wishvanath Mallarwar),
aged 51 years, Occ. Agriculturist,
R/o. Janala, Post Bhagwanpur,
Tq. Mul, District : Chandrapur...... RESPONDENT
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Shri S.R.Soni, counsel for Petitioners.
Shri R.R.Dawda, counsel for Respondent
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CORAM: R. K. DESHPANDE, J.
th DATE : 07 OCTOBER, 2015 .
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ORAL JUDGMENT
1] Rule made returnable forthwith.
Heard the matter finally by consent of the learned counsels appearing for the parties.
2] In Regular Civil Suit No. 23 of 2014 for grant of permanent injunction restraining the defendants from interfering with the possession of the plaintiff over the suit property, the trial Court rejected the application for grant of temporary injunction on 20.11.2014. The lower appellate Court in Misc. Civil Appeal No. 72 of 2014 has reversed the decision of the trial Court and passed an order of temporary injunction in favour of the plaintiff.
3] The question as to whether the suit property, more particularly Survey No. 88, was the ancestral property of Dopaji, the common ancestor, or was his self acquired property. The plaintiff who is the wife of Dopaji claims ownership and possession of the property on the basis of Will said to have been executed by Dopaji. On the contrary, the case of the petitioners/defendants is that, from 7/12 extract it ::: Uploaded on - 13/10/2015 ::: Downloaded on - 13/10/2015 23:59:00 ::: 3 wp1964.15.odt is apparent that the property was mutated in the name of Dopaji and his two sisters. The question needs to be gone into by the Court on merit. The lower appellate Court has prima facie found that the plaintiff is in possession of the property which is the subject matter of Will dated 13.04.2014 executed by Dopaji and there is nothing on record to show that the petitioners-defendants are in possession of the property. The relief of temporary injunction is required to be restricted to the property covered by the said Will. The view taken by the lower appellate Court is a possible view of the matter.
4] In view of above, the writ petition is partly allowed. The order of injunction shall operate only to the extent of 41R of land which is covered by the Will dated 13.04.2014. The claim for injunction in respect of remaining portion of the property is rejected.
JUDGE Rvjalit ::: Uploaded on - 13/10/2015 ::: Downloaded on - 13/10/2015 23:59:00 :::