Smt. Gayabai Wd/O Dopajji Naitam ... vs Smt. Manjubai Dopaji Naitam (Smt. ...
2015 Latest Caselaw 404 Bom

                                                      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

     -------------------------------------------------------------------------------------------
     Shri S.R.Soni, counsel for Petitioners.
     Shri R.R.Dawda, counsel for Respondent
     -------------------------------------------------------------------------------------------
                              CORAM: R. K. DESHPANDE, J.

th DATE : 07 OCTOBER, 2015 .

                                                      2             wp1964.15.odt

     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

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