The Bombay High Court dismissed a writ petition filed under Article 227 of the Constitution, challenging the legality and validity of the impugned order dated 17.09.2021 passed by the District Judge.
The Court observed that considering that both Plaintiff and Defendant No.1 are in joint possession of the suit property, the Trial Court could not have granted an injunction in favor of Plaintiff.
Brief Facts:
Petitioner is the Plaintiff, and Respondent No.1 is the original Defendant No.1. Plaintiff filed Regular Civil Suit on 18.02.2020 in the Trial Court seeking partition of Plaintiff’s share in the suit property described in paragraph No.1 of the Plaint. Plaintiff also sought injunction against Defendant No.1 to restrain him from entering upon the suit property and from taking forcible possession of the suit property. Record shows that Plaintiff and Defendant No.1 both are cultivating their respective agricultural lands / property which is in the close vicinity of the suit property.
By virtue of the transactions among defendants, both Plaintiff and Defendant No.1 got proper access to their respective agricultural lands which were in the close vicinity of the suit property. According to the Plaintiff he was put in possession of the entire suit property. By order dated 30.04.2021, The Trial Court allowed the Application and passed an order of restraint against Defendant No.1. Defendant No.1 being aggrieved filed the statutory appeal against the order. The District Court set aside the order of injunction on the principal ground that none of the parties have acquired title to any definite share in the property Hence, the Plaintiff has filed the present Writ Petition.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner submitted that the findings returned by the District Court that neither the Plaintiff nor Defendant No.1 have acquired any title to any definite share in the property and are therefore not entitled to joint possession and in view thereof, no injunction can be granted in favour of either of the parties, is totally incorrect.
Further, he argued that during the years 2018-2019 and 2019-2020, Plaintiff cultivated and harvested sugarcane crops in the suit property which would go to prove that Plaintiff is in possession of the suit property. He said that once the Trial Court has appreciated the evidence the District Court ought not to have reappreciated the evidence and substituted its own findings which are in fact contrary to the material on record.
Contentions of the Respondent:
The Learned Counsel for the Respondent argued that the Petitioner has taken undue advantage of Defendant No.1's injured health and obtained the ad-interim ex-parte order dated 22.12.2021 from this Court. He submitted that the injunction granted by the Trial Court on 30.04.2021 was incorrectly granted in view of the fact that having adherence to the aforementioned position both Plaintiff and Defendant No.1 were using the suit property to access their existing agricultural lands in the near vicinity of the suit property. Further, he contended that the submission of the Plaintiff that he is cultivating the suit land is therefore incorrect as there is no documentary material placed on record to show that the suit property has been cultivated by the Plaintiff.
Observations of the Court
The Court observed that the District Court after referring to this material evidence concluded that the said documents were prima facie sufficient to hold that Defendant No.1 was also in possession of some portion of the suit property. In that view of the matter and considering that no partition has admittedly been effected between the co-sharers, an injunction could never have been granted in favor of one of the parties. The Court was inclined to accept this finding of the District Court as it is not only well reasoned but supported with evidence at the prima facie stage. The Court remarked that considering that both Plaintiff and Defendant No.1 are in joint possession of the suit property, the Trial Court could not have granted an injunction in favor of Plaintiff.
The decision of the Court:
The Bombay High Court, dismissing the petition, held that the impugned order does not call for any interference by this Court.
Case Title: Balwant Krishna Thorat vs UOI & Shankar Nivruttti Thorat and Ors.
Coram: Hon’ble Justice Milind N. Jadhav
Case no.: WRIT PETITION NO. 6917 OF 2021
Advocate for the Petitioner: Mr. Dilip Bodake
Advocate for the Respondents: Mr. Anilkumar K. Patil
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