Bombay High Court
Sau. Mandabai Ashokrao Tingne vs Mohammad Muntajim Md on 22 November, 2011
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.3156 of 2011
1. Sau. Mandabai Ashokrao Tingne,
Aged 35 yrs.,
Occ. Household,
R/o Amravati, In front of Sahagirwada
Tah. and Dist. Amravati.
2. Sau. Leela w/o Laxmanrao Satpute,
Aged 50 yrs.,
Occ. Household,,
R/o Ward No.6, Baripura,
Ashti, Tah. Ashti, Dist. Wardha. ... Petitioners
Versus
1. Mohammad Muntajim Md.
Jainuddin Mullaji,
Aged 53 yrs.,
Occ. Cultivator,
R/o Shriram Ward,
Arvi, Tq. Arvi, Dist. Wardha.
2. Sudhakar s/o Narayanrao Dudhe,
Aged 58 yrs.,
Occ. Cultivator,
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Ramdeobaba Ward No.5,
Arvi, Tq. Arvi, Dist. Wardha.
3. Vasantrao Sukhdeorao Dudhe,
Aged 45 yrs.,
Occ. Cultivator,
R/o Ramdeobaba Ward No.5,
Arvi, Tq. Arvi, Dist. Wardha.
4. Manoharrao Sukhdeorao Dudhe,
Aged 42 yrs.,
Occ. Cultivator,
R/o Ramdeobaba Ward No.5,
Arvi, Tq. Arvi, Dist. Wardha.
5. Smt. Baynabai wd/o Sukhdeorao Dudhe,
Aged 72 yrs., Occ. Household,
R/o Ramdeobaba Ward No.5,
Arvi, Tq. Arvi, Dist. Wardha.
6. Sahebrao Namdeorao Dudhe,
Aged 45 yrs.,
Occ. Cultivator,
R/o Ramdeobaba Ward No.5,
Arvi, Tq. Arvi, Dist. Wardha.
7. Dattatyryaya Namdeorao Dudhe,
Aged 35 yrs.,
Occ. Cultivator,
R/o Ramdeobaba Ward No.5,
Arvi, Tq. Arvi, Dist. Wardha.
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8. Vijay Namdeorao Dudhe,
Aged 30 yrs.,
Occ. Cultivator,
R/o Ramdeobaba Ward No.5,
Arvi, Tq. Arvi, Dist. Wardha.
9. Sau. Kamal w/o Babulalji Ingole,
Aged 50 yrs.,
Occ. Household,
R/o Near State Bank of India,
Kurha, Tah. Tiosa,
Dist. Amravati.
10. Sau. Lata w/o Madhukar Darokar,
Aged 33 yrs.,
Occ. Household,
R/o Telipura, Ashti, Tah. Ashti,
Dist. Wardha.
11. Bhaskar s/o Ramaji Dudhe,
Aged 40 yrs.,
Occ. Cultivator,
R/o Ramdeobaba Ward No.5,
Arvi, Tah. Arvi, Dist. Wardha.
12. Gopal Ganpatrao Dudhe,
Aged 40 yrs.,
Occ. Cultivator,
R/o Ramdeobaba Ward,
Ward no.5, Arvi, Tah. Arvi,
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Dist. Wardha.
13. Sau. Ashabai w/o Ramrao Tingne,
Aged 50 yrs.,
Occ. Household,
R/o Warha, Chandrapur Nagar,
Tah. Tiosa, Dist. Amravati.
14. Sau. Nirmala w/o Shankar Gujar,
Aged 52 yrs.,
Occ. Household,
R/o Ramdeobaba Ward No.5,
Jarud, Tah. Warud,
Dist. Amravati.
15. Sau. Chandrakala w/o Ramkrishna Sambhe,
Aged 57 yrs.,
Occ. Household,
R/o Ramdeobaba Ward no.5,
Tqh. Arvi, Dist. Wardha.
16. Sau. Kanta w/o Prabhakar Nichat,
Aged 42 yrs.,
Occ. Household,
R/o Baripura Ward No.6,
Ashti, Tah. Ashti,
Dist. Wardha.
17. Sau. Ratna w/o Arun Suhagpure,
Aged 40 yrs.,
Occ. Household,
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R/o Near Pani Taki, Narkhed,
Tah. Narkhed,
Dist. Nagpur. ... Respondents
Shri V.A. Bramhe, Advocate for Petitioners.
Shri V.T. Deshpande, Advocate for Respondent No.1.
Coram : R.K. Deshpande, J.
nd
Dated : 22 November, 2011
Oral Judgment :
1. Rule, made returnable forthwith. Heard finally by
consent of the learned counsels appearing for the parties.
2. The Trial Court allowed the application filed by
defendant No.2 for injunction restraining the plaintiffs and other
defendants from disturbing the possession of defendant No.2,
who is the purchaser of the portion in the suit property. Against
the said order, Misc. Civil Appeal No.44 of 2010 came to be filed
and the same has been dismissed by the learned District Judge-1,
Wardha. Both these orders are subject-matter of challenge in this
petition by the plaintiffs. The other defendants have not
challenged the orders passed by the Courts below. The defendant
No.2 is before this Court and it is not necessary to issue fresh
notices to the defendants, who have not appeared before this
Court.
3. The contention of Shri Bramhe, the learned counsel
appearing for the petitioners/plaintiffs, is that such application is
not maintainable under Order XXXIX, Rule 1(a) of the Civil
Procedure Code. According to him, the said provision entitles the
defendant to file an application and claim the relief only if the
property in dispute is in danger of being wasted, damages or
alienated or wrongfully sold in execution of the decree. He
submits that the application for grant of injunction filed by
defendant No.2 restraining the petitioners/plaintiffs and other
defendants from disturbing his possession was not covered by
Rule 1(a) of Order XXXIX of the Civil Procedure Code and
hence such application at the instance of the defendant was not
maintainable. There is no other contention raised.
4.
According to the petitioners/plaintiffs, the defendant
No.2 has purchased the suit property, which is an ancestral
property. Therefore, even assuming that this position is correct,
the defendant No.2 would be entering into the shoes of the
co-parceners from whom he has purchased the suit property and
in that capacity he would be the defendant in the suit for partition
and separate possession. In a suit for partition and separate
possession, all the defendants are the plaintiffs and hence the
provision of Order XXXIX, Rule 1(a) of the Civil Procedure
Code is not at all attracted and the application for grant of
temporary injunction at the instance of the defendant No.2 was
maintainable. Hence, no fault can be found with the orders
passed by both the Courts below.
5. The petition is, therefore, dismissed. Rule stands
discharged. No order as to costs. The Trial Court is expedited
the suit.
Judge
pdl
