Bombay High Court
Shri Ramdas Shrihari Dagade And ... vs Shri Jaban @ Jagnath Balaji Dagade ... on 5 July, 2017
Bench: Anuja Prabhudessai
Megha
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.464 OF 2014
WITH
CIVIL APPLICATION NO.542 OF 2014
IN
APPEAL FROM ORDER NO.464 OF 2014
Shri Ramdas Shrihari Dagade and
Ors. ...Appellants
Versus
Jaban Bala Dagade & Ors. ...Respondents
.....
Mr. Rajshekhar V. Govilkar for the Appellants/Applicants.
Mr. Vipin Kamdi i/b. Mr. Prashant G. Pandey for the Respondent
No.33.
CORAM : SMT. ANUJA PRABHUDESSAI, J.
DATED : 4th/5th JULY, 2017.
Judgment :
Mr. Vipin Kambli, the learned Counsel for the Respondent No.33
waives service. By consent of the Appellants and the Respondent
No.33, being the only contesting respondent, the Appeal from Order is
taken up for final hearing at the stage of admission.
2. The Appellants herein have challenged the order dated 11th
February, 2014 whereby the learned Civil Judge, Senior Division,
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Pune, dismissed the application for temporary injunction filed by the
aforesaid Appellants in Special Civil Suit No.1192 of 2012.
3. The appellants were the Plaintiffs and the Respondents
were the Defendants in the suit. For the sake of convenience they shall
be hereinafter referred to as "the Plaintiffs" and "the Defendants"
respectively.
4. The subject matter of the suit is the property under Survey
No.339, Hissa No.10 at Village Mauje Bavadhan Budruk. The said
property shall be hereinafter referred to as the suit property.
5. The case of the Plaintiffs is that the suit property is Hindu
Undivided Family (HUF) property, originally owned by Dhondiba
Arjuna Dagade. Said Arjun Dagade had two sons viz. Bala @ Balaji
and Savala. Upon the death of said Dhondiba, the suit property
devolved upon his two sons. The Plaintiffs and the Defendant Nos.22
to 32 are the descendants of Savala, whereas the Defendant Nos.1 to
21 are the descendants of Balaji.
6. The Plaintiffs claim that the suit property was vatan land .
The vatan holder failed to pay the price within the stipulated time,
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hence the rights were forfeited and the land was recorded in the name
of the Government. That upon the Defendant No.1 paying the price,
the property was re-granted to the father of the Plaintiff and the
Defendant No.1. The Plaintiffs have stated that the suit property is a
joint ancestral Hindu Undivided Family property. The suit property
has not been partitioned and that the name of the Defendant No.1 is
recorded in survey records as Karta of Hindu Undivided Family (for
short 'HUF').
7. The Plaintiffs have alleged that on 14 th December, 1995, the
Defendant No.1 and others, with an intention of misappropriating half
share of the Plaintiffs, sold the suit property to one Ashok Dattatray
Abdagiri. The Plaintiffs therefore lodged objections before the survey
authorities and pursuant to the said objections; Mutation Entry
No.2493 in favour of Ashok Abdagiri was cancelled. The Plaintiffs
claimed that Defendant No.16-Vinayak and others had no right to
execute any sale deed in favour of Ashok Abadagiri.
8. The Plaintiffs have further claimed that on 23rd June, 2011
the Defendant No.1-Jaban Dagade, without their consent, sold the suit
property to the Defendant No.33-M/s. Goyal Ganga Developers (India
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Pvt. Ltd.). The Plaintiffs have claimed that the suit property being
Hindu Undivided Family Property, the Defendant No.1 had no right to
sell the property without their consent. Hence, the said sale deed, to
the extent of half share of the Plaintiffs, is null and void. The Plaintiffs
also alleged that Defendant No.33, has threatened to transfer the suit
property to third person. The Plaintiffs therefore, filed a suit for
declaration that the sale deed dated 23rd June, 2011 executed by the
Defendant No.1 and others in favour of the Defendant No.33 is not
binding on them to the extent of their half share. The Plaintiffs also
sought relief of permanent injunction to restrain the Defendant No.33
from transferring, alienating or creating third party rights in respect of
the suit property and further from interfering with their possession in
respect of the suit property. The Plaintiffs also filed an application for
temporary injunction to restrain the Defendant No.33 from
transferring, alienating, or creating third party rights in respect of the
property and/or disturbing his possession in respect of the suit
property.
9. The case of the Defendant No.33, in brief, is that the
property was re-granted to the Defendant No.1-Jaban Dagade as
'Vatandar' as per the Mutation Entry No.1204. Said Jaban Dagade paid
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Nazrana amount to the Government and that the suit property was
allotted to him in his individual capacity and not as Karta of HUF. The
Defendant No.33 contended that the father of the Plaintiffs had no
right to the property and that neither the names of the Plaintiffs nor
the name of his father was recorded in the revenue records. The
Defendant No.33 claims that they have purchased the suit property
from Defendant Nos.1 to 21, who were the exclusive owners, on
payment of consideration of Rs.1,50,00,000/-. The Defendant No.33
claims that they are the owners in possession of the suit property and
as such the Plaintiff is not entitled for the relief of injunction as
claimed.
10. The learned Trial Judge, after considering the case put forth
by the respective parties, held that that the Plaintiffs have prima facie
failed to prove that the suit property was purchased by their
predecessor as 'Watandar' and that they are in possession of the suit
property. The learned trial Judge further held that the suit property is
standing in the name of the Defendant No.1-Jaban Dagade since 1953-
1954 and that the Plaintiffs had not objected for the said entry. They
had neither challenged the Mutation Entry nor sought partition of the
property. The learned Judge further held that the Defendant No.33
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has purchased the suit property from the Defendant Nos.1 to 21 for
consideration of Rs.1,50,00,000/-. The learned Judge further held that
grant of interim relief as prayed by the Plaintiffs would cause
irreparable loss to the Defendant No.33. The learned Judge in short,
held that the Plaintiffs had not proved the prerequisites essential for
grant of interim relief and hence, dismissed the application for
injunction. Aggrieved by the said order, the Plaintiffs have preferred
this Appeal from Order.
11. Mr. Govilkar, the learned counsel for the Plaintiffs has
submitted that the suit property was initially granted to Dhondiba
Dagade, predecessor of the Defendants as well as the Plaintiffs. He has
further submitted that it was re-granted to Defendant No.1-Jaban Da-
gade not in his individual capacity but as a Karta of HUF . He contends
that the suit property being joint family property, the burden was on
the Defendants to prove that it was a self acquired property. The
learned counsel submits that the Defendants have not discharged this
burden.
12. The learned Senior Counsel for the Plaintiffs submits
that the learned Judge failed to consider that the suit property is
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recorded in the survey records, in the name of Defendant No.1-Jaban
Dagade as karta (HUF) and that said revenue entry would not confer
any title on the Defendant No.1. The learned counsel submits that the
Plaintiff continues to be in possession of the suit property despite the
sale in favour of Ashok Abdagiri. He has submitted that the learned
trial Judge failed to appreciate that the Defendant No.1, who was hold-
ing the suit property as Karta of HUF, was not competent to sell the
property to the Defendant No.33. He has submitted that the Plaintiffs
have raised issues which need to be adjudicated on merits. Until such
time the subject matter of suit is required to be maintained in status
quo. He has submitted that the impugned order is arbitrary, illegal and
cannot be sustained.
13. Mr. Vipin Kamdi, the learned counsel for the Defendant
No.33 has submitted that the Plaintiffs have prima facie failed to prove
that the suit property was allotted to the Defendant No.1 as Karta of
HUF and that the same is Hindu Undivided Family property. The suit
property was re-granted to the Defendant No.1 and the Nazrana in
respect of the suit property was paid solely by the Defendant No.1.
Furthermore, the suit property is recorded in the revenue records in
the name of the Defendant no. 1. He claims that the Defendant No.33
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has purchased the property from the Defendant Nos.1 to 21 by paying
consideration of Rs.1,50,00,000/- and that he is in possession of the
suit property. He has submitted that the Defendant No.33 has
developed the suit property along with several other adjoining
properties. The Defendant No.33 has constructed several buildings in
the said properties after obtaining permissions and sanctions from the
concerned authorities. He has submitted that some of the flats
/apartments constructed in the suit property have already been
transferred in favour of third parties and that they are in possession of
the same. The learned counsel for the Defendant No.33 has submitted
that the Plaintiffs have approached the Court after considerable delay
and that the delay in approaching the Court does not justify grant of
equitable relief.
14. I have perused the records and considered the submissions
advanced by Mr. Rajshekhar Govilkar, the learned counsel for the
Plaintiffs and Mr. Vipin Kamdi, the learned counsel for the Defendant
No.33.
15. The pleadings prima facie reveal that the Plaintiffs have ap-
proached the Court with a specific plea that the suit property is HUF
property, a Watan land originally allotted to Dhondiba Arjuna Dagade.
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It is not in dispute that Dhondiba Arjuna Dagade had not paid the price
in respect of the said allotment and hence the rights were forfeited and
the land was recorded in the name of the Government i.e. State of
Maharashtra. It is also not in dispute that the Defendant No.1 had paid
'Nazrana' and the property was re-granted in favour of the Defendant
No.1 in the year 1950. In the case of Appasaheb Chandgade Vs. Deven-
dra AIR 2007 SCC 218 the Apex Court after considering the previous
decisions in Shrinivas Krishnarao Kango .V. Narayan Devil Kango
and Ors. AIR 1954 SC 379, Mst. Rukhmabai V.Lala Laxminarayan
and Ors. AIR 1960 SC 330, Achuthan Nair V.Chinnammu Amma
and Ors. AIR 1966 SC 411 Bhagwant P.Sulakhe V.Digambar Hopal
Sulakhe and Ors. AIR 1986 SC 79, Surendra Kumar V. Phoolchand
(dead) through Lrs. and Anr.AIR 1996 SC 1148 has held thus:
"Therefore, on survey of the aforesaid decisions what
emerges is that there is no presumption of a joint Hindu
family but on the evidence if it is established that the
property was joint Hindu family property and the other
properties were acquired out of that nucleus, if the ini-
tial burden is discharged by the person who claims joint
Hindu family, then the burden shifts to the party alleg-
ing self-acquisition to establish affirmatively that the
property was acquired without the aid of the joint fam-
ily property by cogent and necessary evidence."
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16. It is thus well settled that the fact that a family is a joint
Hindu family does not raise a presumption that the property held by
members of a joint family is a joint property. The initial burden of es-
tablishing that the property is a joint family property is upon a person
asserting such fact. This burden can be discharged by substantiating
that the family possessed some joint property which may have formed
the nucleus from which the property in question may have been ac-
quired. It is only then the onus shifts to the individual member to es-
tablish that it is a self-acquired property. In the instant case there is no
prima facie material to prove that the property was acquired with aid
of joint family funds or that the land was allotted to the Defendant
No.1 in the capacity of Karta of HUF. Thus, prima facie the property
cannot be held to be a joint property of Hindu Undivided Family. The
Plaintiff has therefore failed to prove prima facie case.
17. It is also to be noted that the pleadings prima facie
indicates that sons of the Defendant No.1 and some others had sold the
suit property to one Ashok Abdagir sometime in the year 1995 by deed
of sale dated 14.12.1995. The Plaintiffs had averred that the said sale
deed was executed with an intention of depriving them of their half
share in the property. The Plaintiffs were therefore aware that the
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Defendant No.1 was claiming the suit property as self-acquired
property and was thus disputing the title of the Plaintiffs to the suit
property. Despite such assertion, the Plaintiffs have not sought any
declaration in regard to the title nor sought partition of the property.
It is also pertinent to note that the property was sold to the Defendant
No. 33 by sale deed dated 26 th March, 2011. The Defendant has
already developed the suit property along with other adjoining
properties after obtaining necessary permissions from the appropriate
authorities and has already transferred the flats to third parties.
Considering all these aspects and the delay in approaching the court,
the learned judge was justified in declining to exercise discretion in
favour of the Plaintiffs. The order is neither arbitrary nor perverse.
Hence does not warrant interference.
18. It is made clear that the above observations are tentative
and only for the purpose of disposing of the application for temporary
injunction and that the suit has to be decided without being influenced
by the observations recorded either in the impugned order or in the
order of this Court.
19. The Appeal from order is accordingly dismissed.
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20. In view of the disposal of the Appeal from Order, the Civil
Application does not survive and hence stands disposed of.
(ANUJA PRABHUDESSAI, J.)
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