Smt. Lata Wd/O. Pramod Ukey And ... vs Smt. Vatchhalabai W/O. ...
2016 Latest Caselaw 3067 Bom

    12-J-WP-3494-15                                                                           1/5


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                   
                           NAGPUR BENCH, NAGPUR.




                                                           
                           WRIT PETITION NO.3494 OF 2015 
                                           

    1.  Lata wd/o Pramod Ukey,
         Aged about 42 years, Occ. Household




                                                          
    2.  Kunal s/o Pramod Ukey,
         Aged about 23 years, Occ. Student   




                                             
    3.  Snehal d/o Pramod Ukey,
         Aged about 20 years, Occ. Student 
                               
        All R/o Plot No.12, C/o Parshuram 
        Farkunde, Shubh Nagar, In front of 
                              
        South Point High School, Manewada  
        Ring Road, Nagpur.                                            ... Petitioners. 

    Vs 
      


    Vatchhalabai w/o Shyamraoji Ukey, 
   



    Aged about 65 years, Occ. Household, 
    R/o Plot No.86, Near Reshimbagh Water 
    Tank, Adjoining to N.M.C. Zonal Office, 
    Reshimbagh, Nagpur.                                               ... Respondents. 





    Shri P. S. Sadavarte, Advocate for petitioners. 
    Shri S. G. Karmarkar, Advocate for respondent. 





                                                 CORAM  :  A.S.CHANDURKAR, J. 

                                                  DATE     :  JUNE 21, 2016 

    Oral Judgment :  

Considering the short issue involved, the learned counsel for the

parties have been heard at length by issuing Rule and making the same

returnable forthwith.

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The respondent is the original plaintiff who had filed R.C.S.No.29

of 2014 for partition and separate possession of agricultural field bearing

No.147/2 admeasuring 1H 41 R. This suit has been filed by the

respondent who is the mother-in-law of the petitioner No.1 and

grandmother of the petitioner Nos.2 and 3. It is the case of the

respondent that the aforesaid agricultural field was purchased by her son

in the year 1983. The said son expired in the year 2013 giving rise to

dispute between the parties. It is the case of the respondent that she has

1/4th share in the suit property. Alongwith the said suit, the respondent

also filed an application for temporary injunction seeking to restrain the

petitioners from creating third party rights in the suit property and also

from carrying out any work therein.

2. The petitioners filed their written statement and also raised a

counter-claim. The case of the respondent was denied. The petitioners

also filed an application for temporary injunction praying therein that the

respondent or her agent should not enter the suit property and should not

disturb their possession.

3. The trial Court by common order dated 06/12/2014 allowed the

application filed by the respondent and rejected the application filed by

the petitioners. The petitioners were restrained from creating third party

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rights in the suit property. The Appellate Court confirmed the aforesaid

order passed by the trial Court and hence this writ petition.

4. Shri P. S. Sadavarte, the learned counsel for the petitioners

submitted that the injunction as refused caused great prejudice to the

petitioners. After the death of said Pramod, the petitioners were in

cultivating possession of the suit property and therefore they could not

have been restrained from cultivating the same. He submitted that the

revenue proceedings pertaining to mutation entries were pending before

the Authorities and there were no legal basis whatsoever for denying

entitlement of the petitioner. It was submitted that the respondent was

aged more than 65 years and she was not personally cultivating the suit

land. However, the possession of the petitioners was being disturbed by

her Power of Attorney holder.

It was submitted that the respondent was claiming only 1/4th

share and therefore a case for grant of injunction in respect of the entire

land was not made out. Without prejudice, it was submitted that

considering the nature of dispute if a Receiver is appointed to take care of

the suit field during pendency of the suit, the interests of both the parties

would be served. In that regard he placed reliance on the judgments

reported in 1997(3) Mh.L.J. 532 Mulji Umershi Shah vs. Praradisia

Builders Pvt. Ltd. and ors. and 2012(2) Mh. L.J. 215 Gorakh Mahadev

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Survase and ors. vs. Narayan Balu Dhombe.

5. Shri S. G. Karmarkar, the learned counsel for the respondent

supported the impugned order. According to him, the name of

respondent No.1 was included in 7/12 extracts and therefore both the

Courts rightly rejected the prayer for injunction. The respondent as

mother of said Pramod had share in the suit property. He submitted

that the petitioner intended to alienate the suit property and therefore

both the Courts rightly restrained the petitioner from doing so. He

therefore submitted that the suit itself can be expedited by maintaining

the present position.

6. I have given due consideration to the respective submissions and I

have gone through the documents filed on record. It is to be noted that

the parties are related and the claim made by the respondent is to the

extent of 1/4th share in the suit property. The question whether the

respondent is entitled for partition and separate possession can be

decided after the parties lead evidence. On the aspect of possession there

is no clear finding recorded by either of the Courts that one of the party is

in possession to the exclusion of the other party. It is also to be noted

that the suit property is an agricultural land. Considering the fact that

both the petitioner No.1 and the respondent are ladies who would not be

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in a position to carry out agricultural operations by themselves, I find that

this is a fit case in which Receiver can be appointed to take care of the

suit property by putting it under cultivation subject to final adjudication

in the suit. Such course have been following in Mulji U. Shah and

Gorakh M. Survase (supra).

7. In that view of the matter, the following order is passed :

(i)

The Registrar of the District Court, Nagpur is appointed as Receiver of the suit property. He shall exercise all powers under

provisions of Order-XL Rule 1 of the Code of Civil Procedure. He shall take possession of the suit property from the party who is in possession. He shall also invite bids from the plaintiff and

defendants for cultivating the suit property and thereafter put the

highest bidder in possession.

(ii) Neither of the parties would be permitted to alienate the suit property.

(iii) The Registrar shall submit report in that regard before the trial Court and as per directions issued to him by the said Court.

(iv) Hearing of the proceedings in R.C.S.No.29 of 2014 is expedited

and the said suit shall be decided by the end of March 2017.

(v) Rule is made absolute in aforesaid terms with no order as to costs.

Copy of this judgment be separately sent to the Registrar, District Court, Nagpur for taking necessary steps.

JUDGE

Asmita