Narendrakumar Bhagwandas ... vs Smt. Kaushika Rasiklal Gorasiya ...
2021 Latest Caselaw 12417 Bom

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                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                         NAGPUR BENCH AT NAGPUR

                                               WRIT PETITION NO.5906/2019
                                            Narendrakumar Bhagwandas Gorasiya
                                                         ...Versus...
                                          Smt. Kaushika Rasiklal Gorasiya and others
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Office Notes, Office Memoranda of Coram,                                                                             Court's or Judge's orders
appearances, Court's orders or directions
and Registrar's orders
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                                            Shri S. A. Mohta, Advocate for petitioner.
                                            Shri S. C. Joshi, Advocate for respondent nos.1 and 2.


                                                                                        CORAM : AVINASH G. GHAROTE, J.

DATE : 02/09/2021

Heard Mr. Mohta, learned counsel for the petitioner

and Mr Joshi, learned counsel for the respondents no.1 and 2.

2. A suit for declaration that the shop Nos.29 and 29-A

situated at New Cloth Market, Akola, is the property of the

partnership firm and the defendants are not having any individual

ownership rights and authority to transfer, assign or deal with the

property is filed by the petitioner who is the plaintiff before the

Trial Court. An application under Order 39 Rule 1 and 2, came to

be filed by the present petitioner, in the said suit seeking a relief of

restraining the defendants from creating any third party interest

therein. The application came to be rejected, by the learned Trial

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Court by an order dated 18.7.2018, holding that a prima facie case

to grant such an injunction was not made out and in any case, if

there was transfer the same would be covered by the principle of

lis pendens as contained in Section 52 of the Transfer of Property

Act, 1882, and the plaintiff therefore, would have a remedy to

either continue with the suit as it with the subsequent purchaser

being bound by its result, or add such subsequent purchaser as a

party to the suit by challenging the document of transfer. It was

further recorded that the transfer of the said shops in favour of the

defendants had been approved by the Assistant Registrar by his

order dated 10.3.2017, which has been confirmed by the Deputy

Registrar Co-operatives Societies by his order dated 21.11.2017,

challenge to which made by the plaintiff came to be dismissed. It

was therefore, held that the challenge as laid in the suit that the

transfer of the said shops in favour of the deceased Rasiklal the

husband of the defendant no.1, was a nominal one will have to be

tested on the merits. The appeal as against the same also came to

be dismissed by the Ad-hoc District Judge - 1 by its judgment

dated 12.2.2019, who rendered the findings that there was no

document placed on record to arrive at a finding about any

7.wp.5906.2019.....odt

nominal transfer, in view of which, considering the orders passed

by the Authorities under the Maharashtra Cooperative Societies

Act, the appeal came to be dismissed.

3. Mr. Mohta, learned counsel for the petitioner, submits

that both the Courts have failed to consider that the transfer in

favour of the deceased Rasiklal of the said two shops was nominal

and so also did not consider the Deed of dissolution of the

partnership firm and its effect upon the said property, as a result of

which, the impugned order and judgment cannot be sustained.

4. Mr. Joshi, learned counsel for the defendants at the

outset categorically admits that both the shops are in possession of

the plaintiff, who is conducting the business form shop no.29 and

shop no. 29-A has been leased out by the plaintiff.

5. In view of this specific admission regarding the absence

of possession of the defendants in respect of the said shops, the

apprehension by the plaintiff, is clearly unfounded as the

defendants cannot take possession of the same without following

due process of law. It is equally clear that any transfer of the said

property by the defendants would clearly be subject to the result of

the suit and also hit by the principle of lis pendens as contained in

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Section 52 of the Transfer of Property Act. Nothing has been placed

on record to substantiate the apprehension of the defendants

intending to create third party interest in the suit property and in

any case, if the same is done in future, it will be subject to the

result of the suit as found by the learned Trial Court.

6. In that view of the matter, I do not see any infirmity in

the impugned order and judgment. The petition being without

merit therefore is dismissed.

7. It is made clear that any prima facie observations made

in the impugned order and judgment, shall not affect the merits of

the matter. The trial of the suit is expedited.

(AVINASH G. GHAROTE, J)

Sarkate.