Bombay High Court
Smt. Draupadi Namdev Patil Decd. ... vs Kusum Indrapal Bhoir And Ors on 25 April, 2022
Bench: Nitin W. Sambre
(25)-WP-5085-22.doc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally
signed by
CIVIL APPELLATE JURISDICTION
BALAJI
BALAJI GOVINDRAO
GOVINDRAO PANCHAL
WRIT PETITION NO.5085 OF 2022
PANCHAL Date:
2022.04.26
09:40:22
+0530
Smt. Draupadi Namdev Patil
Since deceased through legal heirs
Arvind Namdeo Patil and Ors. ..Petitioners
Versus
Kusum Indrapal Bhoir and Ors. ..Respondents
Mr. Kishor K. Malpathak, for the Petitioners.
Mr. Atul Rajadhyaksha, Senior Advocate a/w Dharmesh Joshi i/by T.
D. Joshi & Associates, for the Respondent No.9.
CORAM : NITIN W. SAMBRE, J.
DATE : 25th APRIL, 2022
P.C.
1. This petition is by the plaintiffs to Special Civil Suit
No.657 of 2010. The petitioners in the capacity of legal heirs of
deceased Indrapal sought 1/7th share in the suit property which
was purchased by the defendant No.9.
2. Since the defendant No.9 started developing the said
property, application Exh.73 came to be moved under Order XXXIX
Rule 1 and 2 of the CPC seeking injunction against the defendant
No.9 to the extent of not to develop the suit property or create third
party interest. The said prayer was rejected vide order impugned
dated 20th August, 2018 passed by the 9th Joint Civil Judge, Senior
Division, Thane, which is confirmed in an appeal preferred by the
BGP. 1 of 4
(25)-WP-5085-22.doc.
petitioners/plaintiffs being MCA No.216 of 2018 vide order dated
28th June, 2019. As such, this petition.
3. Submissions of Mr. Kishor Malpathak, counsel appearing
for the petitioners/plaintiffs are, both the Courts below committed
an error in refusing injunction, as admittedly the petitioners are the
legal representatives of the deceased Indrapal from whom the
defendant No.9 claimed to have purchased the property. According
to him, since the status of the petitioners that of legal
representatives of deceased Indrapal is not disputed, the Courts
should have injuncted the respondent/defendant No.9 from
developing the property or creating third party interest. Drawing
support from the judgment of the Apex Court in the matter of Bina
Murlidhar Hemdev and Ors. Vs. Kanhaiyalal Lokram Hemdev and
Ors. reported in (1999) 5 SCC 222, it is urged that unless it is
demonstrated by the defendant No.9 that he is purchaser of the suit
property without notice, the petitioners were entitled for temporary
injunction. Further contention is, being legal heirs of deceased
Indrapal, petitioners' right to succeed to the estate of Indrapal is not
in dispute. That being so, there is strong likelihood that of the
petitioners getting succeeded in the suit claim. Once the defendant
No.9 is permitted to develop the suit property, the very object of
filing of the suit will be frustrated and as such, it is prayed that the
defendant No.9 be restrained by either carrying out development or
he be mandatorily directed to deposit sale proceeds of 1/7th part of
the suit property in the Court.
BGP. 2 of 4
(25)-WP-5085-22.doc.
4. The prayer is opposed by Mr. Atul Rajadhyaksha, learned
senior counsel for the respondent No.9. According to him, the title
of the defendant No.9 over the suit property is perfected through
the compromise decree drawn in Special Civil Suit No.66 of 2001
during the lifetime of Indrapal. He would invite my attention to the
compromise decree executed on 14th September, 2005 and the
conveyance accordingly executed thereafter. He would further urge
that defendant No.9 is in settled possession as the said Special Civil
Suit being for special performance was based on the development
agreement executed on 16th March, 1985 which was registered on
6th November, 1986. As such, he would urge that against the
concurrent findings, the Court should be slow in causing
interference.
5. I have appreciated the said submissions.
6. The defendant No.9 perfected his title based on
registered agreement dated 16th March, 1985 and the compromise
in the said Suit No.66 of 2001 by getting conveyance executed on
14th September, 2005 which is registered document. Indrapal
alleged to have been expired in 2007.
7. The fact remains that during the pendency of the Special
Civil Suit No.66 of 2001, petitioners/plaintiffs were major and could
have asserted their rights in the suit property, if so denied by
Indrapal, by initiating suit for partition and separate possession
BGP. 3 of 4
(25)-WP-5085-22.doc.
against him.
8. Rather the inference from the conduct of the petitioners
to be drawn is the petitioners appears to be beneficiaries out the
compromise decree in the earlier suit between deceased Indrapal
and the defendant No.9.
9. Apart from above, it is not the case of the petitioners
that sale by Indrapal of the suit property in favour of the defendant
No.9 was for necessity.
10. In the aforesaid background, both the Courts below
were justified in rejecting the prayer of the petitioners.
11. Reliance placed on the judgment of the Apex Court in
the matter of Bina Murlidhar Hemdev (cited supra) will be of hardly
any significance, as it is not the case of the defendant No.9 herein
that he is purchaser of the suit property without notice. Rather it
was for the petitioners to establish that there is prima-facie case and
the petitioners were diligent in pursuing their timely remedy. For
the aforesaid reasons, I hardly see any reason which warrants
interference in concurrent findings recorded by both the Courts
below.
12. The petition as such fails, dismissed.
[NITIN W. SAMBRE, J.]
BGP. 4 of 4
