Bombay High Court
Dadaji Dhuniwale Sansthan, ... vs Ramkrushna Shivramji Ghayar And ... on 2 August, 2016
Bench: Ravi K. Deshpande
1 sa416.02 445.02.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 416 OF 2002
Ramrao Mahadeorao Dahapute,
aged 45 years, Resident of Shirala,
Tah. Shirala, Distt. Amravati. APPELLANT
...VERSUS...
1] Ramkrishna Shivramji Ghoyar,
aged 52 years, Occ..
Resident of Shirala, Tahsil and
District Amravati.
2] Shri Dadaji Dhuniwale Sansthan, Shirala,
through its president Shri Nilkanth Madhaorao
Deshmukh, 50 years, Agriculturist,
Resident of Shirala, Tahsil and
District Amravati.... RESPONDENTS
AND
SECOND APPEAL NO. 445 OF 2002
Shri Dadaji Dhuniwale Sansthan, Shirala,
through its president Shri Nilkanth Madhaorao
Deshmukh, 50 years, Agriculturist,
Resident of Shirala, Tahsil and
District Amravati. APPELLANT
...VERSUS...
1] Ramkrishna Shivramji Ghoyar,
aged 52 years, Occ..
Resident of Shirala, Tahsil and
District Amravati.
::: Uploaded on - 04/08/2016 ::: Downloaded on - 05/08/2016 00:26:48 :::
2 sa416.02 445.02.odt
2] Ramrao Mahadeorao Dahapute,
aged 45 years, Resident of Shirala,
Tah. Shirala, Distt. Amravati..... RESPONDENTS
-------------------------------------------------------------------------------------------
Shri P.R.Agrawal, counsel for appellant in SA No.416 of 2002 and for
Respondent No.2 in SA No.445 of 2002
Smt. S.W.Deshpande, counsel for Respondent No.1 in both second
appeals.
Shri P.R.Agrawal, counsel for R-2 in SA No.416 of 2002 and for
Appellant in SA No.445 of 2002
-------------------------------------------------------------------------------------------
CORAM: R. K. DESHPANDE, J.
DATE : 2 nd AUGUST, 2016 .
ORAL JUDGMENT
1] The trial Court passed a decree in Regular Civil
Suit No. 850 of 1989 on 31.01.1996, restraining the
defendants permanently from interfering with the possession
of the plaintiff over the suit field. Both the defendants
preferred separate appeals, being Regular Civil Appeal No.
70 of 1996 and Regular Civil Appeal No. 71 of 1996 and the
lower appellate Court dismissed both the appeals on
19.06.2002. Hence, the defendants are before this Court in
these second appeals.
2] The matter was admitted on the following
substantial question of law on 15.09.2005.
3 sa416.02 445.02.odt
Whether a decree of declaration and
permanent injunction concerning of
possession can be passed in favour of one
of the co-owners and against the other
co-owner of the suit property?
3] Undisputedly, the plaintiff along with Smt.
Kausalyabai and Smt. Reotabai were having undivided share
and interest to the extent of 1/3rd each in Survey No. 504,
admeasuring 3 acres of land. By registered sale deed dated
15.12.1986, Smt.Kausalyabai and Smt.Reotabai sold their
undivided share and interest in the suit property in favour of
the defendant No.1 who became the absolute owner to the
extent of the said share in the suit property.
4] The plaintiff claims himself to be in exclusive
possession of the entire property. The Courts below have
also recorded such a finding. However, there cannot be an
order of injunction against the co-owners restraining them
from interfering with the possession of the another co-owner.
The property is not yet partitioned by metes and bound and
the possession of one of the co-owner is treated as
possession of all the co-owners. The substantial question of
law is answered accordingly. Consequently, the suit is
4 sa416.02 445.02.odt
required to be dismissed.
5] In the result, the second appeal is allowed. The
judgment and order dated 31.01.1996 passed by the trial
Court in Regular Civil Suit No. 850 of 1989 and that of the
appellate Court dated 19.06.2002 passed in Regular Civil
Appeal Nos. 70 of 1996 and 71 of 1996. The Regular Civil
Suit No. 850 of 1989 is dismissed.
The parties are left with liberty to adopt all such
appropriate proceedings as are available to them in the eyes
of law including to file a suit for partition and separate
possession.
JUDGE
Rvjalit
5 sa416.02 445.02.odt
C E R T I F I C A T E
"I certify that this Judgment/Order uploaded is a true and correct copy
of original signed Judgment/Order.
Uploaded by : R.V.Jalit, P.A. Uploaded on : 4th August, 2016
