Bombay High Court
Sow. Babanbai @ Laxmibai Motiram ... vs Anusayabai Keshav Brahmane ... on 2 December, 2021
Bench: V. V. Kankanwadi
ca-6663-2021.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO.6663 OF 2021
IN SA/252/2000
ANUSAYABAI W/O KESHAV BRAMHANE AND ORS.
VERSUS
ANDRESH RAKHMA BRAMHANE AND ORS
...
WITH CA/13196/2017 IN SA/252/2000
WITH CA/13195/2017 IN SA/252/2000
WITH CA/13197/2017 IN SA/252/2000
WITH CA/13193/2017 IN SA/252/2000
WITH CA/15823/2010 IN SA/252/2000
WITH CA/13194/2017 IN SA/252/2000
WITH CA/2846/2000 IN SA/252/2000
...
Mr. A. P. Bhandari, Advocate for applicants
Mr. V. R. Dhorde, Advocate for respondent Nos.1 to 4.
Mr. R. K. Adsure, Advocate for respondent Nos.5 to 14
Mr. Y. B. Pathan, Advocate for respondent No.9.
Mr. S. P. Chapalgaonkar and Mr. S. S. Chapalgaonkar, Advocate for
respondent No.1 in CA Nos.13196/2017, 13195/2017, 1317/2017,
13193/2017.
...
CORAM : SMT. VIBHA KANKANWADI, J.
Reserved on : 01.10.2021
Pronounced on : 02.12.2021
ORDER :-
. Civil Application No.6663 of 2021 has been filed by original
respondent Nos.5, 7 and 8 in the second appeal seeking injunction
against present respondent No.1 and legal representatives of respondent
No.2 i.e. respondent Nos.2A to 2D from alienating, creating third party
(1)
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interest, changing the nature of the suit property i.e. land Gut No.191 of
village Loni (Kh.), Tq. Rahata, Dist. Ahmednagar till the decision of the
second appeal.
2. Heard learned Advocate Mr. A. P. Bhandari for applicants, learned
Advocate Mr. V. R. Dhorde for respondent Nos.1 to 4, learned Advocate
Mr. R. K. Adsure for respondent Nos.5 to 14, learned Advocate Mr. Y. B.
Pathan for respondent No.9 and learned Advocate Mr. S. P.
Chapalgaonkar and Mr. S. S. Chapalgaonkar for respondent No.1 in Civil
Application Nos.13196/2017, 13195/2017, 1317/2017, 13193/2017.
3. It has been vehemently submitted on behalf of applicants that the
second appeal is admitted and it is pending for final disposal, however,
appellant Nos.2, 3 and respondent Nos.1, 2, 3, 5 and 12 have expired.
Application has been filed for bringing the legal representatives of
appellant No.2 on record for which there is delay of 5844 days. Legal
representatives of appellant No.3 are already on record. The appeal has
abated against respondent No.1 by order dated 10.02.2016 passed by
the learned Registrar (Judicial) and application for setting aside the said
order as well as application to bring the legal representatives of
respondent No.1 is still pending. Another application for condoning the
delay of 5667 days in bringing legal representatives of respondent No.2
(2)
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is pending. Respondent No.3 had passed away on 14.03.1997, when the
matter was before the lower Appellate Court. Respondent No.5's legal
heirs are on record. Respondent No.12 had passed away on 07.03.1998
and the civil application is pending for bringing her legal representatives
on record. The original appellants are not prosecuting the appeal
properly. Applicants are the original plaintiffs whose rights of having
half share in the suit land has been confirmed by the judgment and
decree passed by the learned Trial Court. The appeal preferred by the
original defendants has been dismissed. The decree for partition and
separate possession has been stayed by this Court and the applicants are
waiting for the fruits of the decree for about 37 years. Now, during the
pendency of the appeal, the property is mutated in the name of
respondent Nos.1, 2A to 2D. They are taking certain steps to develop
the property and thereby it appears that they want to change the nature
of the same. They should preserve the property as it is till the decision
of the second appeal and, therefore, there is necessity to pass an order
protecting the interest of the applicants.
4. Per contra, the learned Advocate for original appellants submitted
that the appeal is admitted and the other applications are pending. The
appellants are not carrying out any such activities which is detrimental
to the interest of the applicants. No such injunction was clamped on the
(3)
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shoulders of the appellants during the pendency of the suit as well as
appeal. He prayed for rejection of the application. Learned Advocates
submitted that the prayer is mainly against respondent Nos.1, 2A to 2D
in the application.
5. At the outset, it is the cardinal principle that when the appeal is
admitted, the property involved in the matter should be preserved as it
is, as it was in existence at the stage of both the Courts below. Merely
because earlier, there was no such injunction, it cannot be said that it
cannot be asked at this stage for the simple reason that now such
activities are stated to be undertaken by respondent Nos.1, 2A to 2D,
which according to the present applicants are detrimental to their
interest. Photographs have been produced stating that JCB machine was
brought to the plot/field and some digging activity had started.
Additional affidavit has also been filed on behalf of applicants to support
the application. There is no counter affidavit by respondent Nos.1, 2A
to 2D stating that those photographs are from different site. Therefore,
prima facie it has been shown that certain activities are being
undertaken by respondent Nos.1, 2A to 2D in the suit property. The
second appeal is admitted in the year 2000 and it appears that the other
applications with huge condonation of delay are pending. That should
not be a hurdle for the applicants to protect the property in respect of
(4)
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which as on today, the decree is in their favour. Hence, in order to
protect the property during the pendency of the second appeal,
following order is passed :-
ORDER
I) Civil Application No.6663 of 2021 stands allowed and
disposed of.
II) Respondent Nos.1, 2A to 2D, their servants agents or any
person claiming through them are hereby restrained from
alienating, creating third party interest, changing the nature of the
suit property i.e. land Gut No.191 of village Loni (Kh.), Tq.
Rahata, Dist. Ahmednagar, which is more particularly described in
paragraph No.3 of the civil application, till the hearing and final
disposal of the second appeal.
III) Place the other applications for further consideration on
20.12.2021.
[SMT. VIBHA KANKANWADI, J.]
scm
