Shri. Pandurang Maruti Kharat ... vs Shri. Santosh Uttamrao Barge And ...
2018 Latest Caselaw 810 Bom

Dixit
               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CIVIL APPELLATE JURISDICTION

                                WRIT PETITION NO.9618 OF 2017

        1. Pandurang Maruti Kharat (Since Deceased),            ]
           Through LRs :                                        ]
           1a) Murlidhar Pandurang Kharat,                      ]
                  Age 65 Years, Occ. Agriculturist,             ]
                  R/at Survey No.48, Siddhanath Wadi,           ]
                  Wai, Tal. Wai, Dist. Satara.                  ]
           1b) Radhabai Dhondiba Barkade,                       ]
                  Age 57 Years, Occ. Agriculturist,             ]
                  R/at Limb-Dhagewadi,                          ]
                  Tal. & Dist. Satara.                          ]
           1c) Shantabai Gulab Kharat,                          ]
                  Age 45 Years, Occ. Agriculturist,             ]
                  R/at Dagadvasti, P.O. Lonad,                  ]
                  Tal. Khandala, Dist. Satara.                  ]
           1d) Kuldeep Gulab Kharat,                            ]
                  Age 15 Years, Occ. Education,                 ]
                  R/at Dagadvasti, P.O. Lonad,                  ]
                  Tal. Khandala, Dist. Satara.                  ]
           1e) Kantabai Narayan Valkunde,                       ]
                  Age 53 Years, Occ. Housewife,                 ]
                  R/at Walkundewadi, P.O.,                      ]
                  Tal. Wai, Dist. Satara.                       ]
            1f) Alka Madhukar Kolekar,                          ]
                  Age 51 Years, Occ. Housewife,                 ]
                  R/at Post Nimam Padali,                       ]
                  Tal. & Dist. Satara.                          ]
           1g) Surekha Balasaheb Mahanvar,                      ]

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           Age 47 Years, Occ. Housewife,               ]
          R/at Shirval, Tal. Khandala,                ]
          Dist. Satara.                               ]
   1h) Ramchandra Pandurang Kharat,                   ]
          Age 45 Years,                               ]
          R/at Survey No.2445, Tal. Wai,              ]
          Dist. Satara.                               ]
    1i) Savita Shivaji Kachore, Age 45 Yrs.           ]
2. Murlidhar Pandurang Kharat,                        ]
   Age 59 Years, Occ. Agriculturist                   ]
3. Bhikabai Murlidhar Kharat,                         ]
   Age - Adult, Occ. Agriculturist                    ]
4. Mahesh Murlidhar Kharat,                           ]
   Age 21 Years, Occ. Agriculturist                   ]
5. Vaishali Murlidhar Kharat                          ]
   Age 27 Years, Occ. Housewife                       ]
6. Rajendra Murlidhar Kharat,                         ]
   Age 25 Years, Occ. Service                         ]
   All residing at Survey No.48,                      ]
   Siddhanath Wadi, Tal. Wai, Dist. Satara.           ] .... Petitioners
                  Versus
1. Santosh Uttamrao Barge,                            ]
   Age 35 Years, Occ. Service                         ]
   R/at Near Bhairoba Mandir,                         ]
   Koregaon, Tal. Koregaon, Dist. Satara.             ]
2. Hanumant Ramdas Gaikwad,                           ]
   Age 36 Years, Occ. Business                        ]
   R/at BVG House, Primier Plaza,                     ]
   Pune - Mumbai Road, Chinchwad,                     ]
   Pune - 411019.                                     ]
3. Pandurang Laxman Yadav,                            ]
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      Age 45 Years, Occ. Business                              ]
     R/at B 11, Near Trimurti Temple,                         ]
     Trimurti Colony, Devkar Path,                            ]
     Pimpale-Gurav (Kavadenagar), Pune.                       ] .... Respondents


Mr. Bhalchandra S. Shinde for the Petitioners.
Mr. Ashutosh M. Kulkarni for the Respondents.

                          CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.

                          DATE          : 23 RD JANUARY 2018.

ORAL JUDGMENT :

1. Rule. Rule is made returnable forthwith. Heard finally, at the stage

of admission itself, by consent of Mr. Shinde, learned counsel for the

Petitioners, and Mr. Kulkarni, learned counsel for the Respondents.

2. By this Petition, filed under Article 227 of the Constitution of India,

the Petitioners are challenging the Judgment and Order dated 7 th August

2017 passed by the Ad-Hoc District Judge-1, Satara, thereby dismissing

the Miscellaneous Civil Appeal No.132 of 2012, which was preferred by

the Petitioners against the order dated 25 th November 2008 passed

below "Exhibit-5" in Special Civil Suit No.218 of 2008 by the Civil Judge,

Senior Division, Satara.

3. Thus, by this Writ Petition, the Petitioners are challenging the

concurrent factual finding of the Trial Court and confirmed by the

Appellate Court, while deciding the application for interim injunction

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filed by the Respondents-Plaintiffs. The law is fairly well settled, as laid

down in the Judgment of the Apex Court in the case of Wander Ltd. &

Anr. Vs. Antox India P. Ltd., 1990 (Supp.) SCC 727 , that, when the

discretion is exercised by the Trial Court and, in this case, confirmed by

the Appellate Court, the scope of interfering in the said discretion in the

writ jurisdiction is very limited. Only if it is shown that the discretion

exercised by the Trial Court and confirmed by the Appellate Court is

perverse in a sense that, it is exercised without taking into consideration

the factual aspects and material on record and is against the settled

position of law, this Court can interfere in exercise of the said discretion.

4. In the present case, the submission advanced by learned counsel

for the Petitioners is that, the Respondents-Plaintiffs have filed Suit

simplicitor for injunction, claiming to have purchased the suit land and

being in possession of the same. Admittedly, the suit land was ancestral

joint family property of the Petitioners and Vendors of the Respondents.

It is urged that, the Sale-Deed, on the basis of which the Respondents are

claiming to have purchased the suit land, also clearly mentions that the

predecessor of the Respondents-Plaintiffs is selling his "undivided share"

in the joint family property. Hence, it is submitted that, when such

'undivided share' in the joint family property is sold by one of the co-

owners, then, it is mandatory for the purchasers to file a Suit for

partition and separate possession of his share in the suit land. He cannot

file a Suit simplicitor for injunction against the other co-owners.

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5. To substantiate this submission, learned counsel for the

Petitioners has relied upon the Judgment of the Apex Court in the case

of Ramdas V/s. Sitabai, 2009 (5) Bom.C.R. 290, wherein, the well settled

legal position is laid down that,

"The purchaser of a co-parcener's undivided interest in the joint family property is not entitled to possession of what he had purchased. His only right is to sue for partition of the property and ask for allotment to him of that which, on partition, might be found to fall to the share of the co- parcener, whose share he had purchased."

6. In my considered opinion, there cannot be any two opinions about

the legal proposition laid down in this authority. The only question for

consideration in this case is, 'whether the said legal proposition can be

made applicable to the facts of the present case?' , as in this case, both,

the Trial Court and the Appellate Court, have categorically held, on the

basis of the recitals made in the Sale-Deed executed by the Petitioners

themselves in favour of one Shriprasad Fattesingh Jadhav in respect of

the half portion of the same property viz. Survey No.48/1, that, he has

become the sole and exclusive owner of the suit property, in view of the

'Oral Partition' arrived at between him and his brother with respect to

this particular survey number. Therefore, when the Petitioners

themselves had acted upon the 'Oral Partition' and sold the share

allotted to them in the said 'Oral Partition', now they cannot contend

and, in fact, are estopped from contending that the property is still the

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ancestral joint family property and, therefore, without seeking partition,

Respondents-Plaintiffs cannot claim to be in possession of the suit

property or claim the relief of interim injunction. It is pertinent to note

that, the relevant Mutation Entry No.2960 is also made to show that

predecessor of the Respondents, Ashok Dadasaheb Jambure, paid the

loan taken by Anna Maruti Kharat against this particular Survey No.48

and hence, the charge of the Bank over the said property is released.

This fact, as observed by the Trial Court, prima facie, goes to show that

the suit land must be in possession of Ashok Jambure in 1995,

otherwise, no prudent man would pay the loan and release the charge.

7. It is also pertinent to note that, in Regular Civil Suit No.34 of 1992,

which is pending in the Court and is filed by Anna and his sons, the

present Petitioner No.2-Murlidhar has admitted in his written statement

that, partition has taken place orally in the year 1988, even with respect

to Survey No.48.

8. It may also be stated that, the Mutation Entry No.2939, entering

the name of the Respondents to the suit land on the basis of the Sale-

Deed, is already made. Though the Petitioners approached the

Competent Authority to cancel the same, they were not succeeded and it

is confirmed upto Additional Commissioner, Pune.

9. Though it is contended by the Petitioners that, one of the

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purchasers with Ashok Jambure, namely, Abubakar Ahmedsaheb

Shikalgar was not an agriculturist, the perusal of the impugned order

passed by the Trial Court reveals that, the said contention was also

rejected upto Additional Commissioner, Pune.

10. In such situation, having regard to all these facts, there is no

substance in the challenge raised by the Petitioners to the concurrent

finding of fact recorded by the Trial Court and confirmed by the

Appellate Court.

11. The perusal of the impugned orders passed by both the Courts

below is sufficient to hold that, both the orders are based on the material

produced on record and after proper appreciation thereof. Hence, in the

writ jurisdiction of this Court and in view of the well settled legal

position, this Court cannot interfere in the discretion exercised by both

the Courts below, as no such ground is made out for interference.

12. The Writ Petition, therefore, being without merits, stands

dismissed.

13. Rule is discharged.

[DR. SHALINI PHANSALKAR-JOSHI, J.]

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