Bombay High Court
Mr. Arjun Kallappa Patil And Anr vs Shri. Vishnu Kallappa Patil And ... on 23 February, 2022
Bench: Nitin W. Sambre
2.7041.19 wp.doc
ISM
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL WRIT PETITION NO. 7041 OF 2019
MR. ARJUN KALLAPPA PATIL AND ANR ....PETITIONERS
V/s.
SHRI. VISHNU KALLAPPA PATIL .....RESPONDENTS
AND ANR
Mr. Ashish Gaikwad i/b Mr. Yogesh Bamne for the Petitioners
Mr. Yashodeep Deshmukh, Ms. Vaidehi Deshmukh, Kinjal Kanani i/b
Mr. Muzaffar Patel for Respondents.
CORAM : NITIN W. SAMBRE, J.
DATE: FEBRUARY 23, 2022.
P.C.:
1) R.C.S. No. 176/2015 is initiated by the Petitioner-Plaintiff
seeking declaration and injunction in which he has alleged that he is
in possession of the Suit property by virtue of family arrangement
dated 24/05/2005. Based on documentary evidence placed on
record, the Trial Judge granted temporary injunction on 12/02/2016
restraining Respondent-Defendants from interfering with peaceful
possession of the Plaintiff over the Suit property till disposal of the
2.7041.19 wp.doc
Suit, however, vide impugned order, learned District Judge set aside
the same on 11/06/2018. As a consequences, Petitioner-Plaintiff,
feeling aggrieved, preferred this Petition.
2) I have appreciated the reasons recorded by both the Courts
below.
3) Though it is claimed by the Respondent-Defendant that alleged
family arrangement dated 24/05/2005 even if was entered into,
however, same was never acted upon and the revenue record till date
stands in the name of Respondent in view of order of adjudication
carried out. He would further claim that Respondent-Defendants
have every share in the Suit property same being ancestral. As such,
Appellate Court was justified in rejecting the prayer for temporary
injunction.
4) I have appreciated said submissions in the light of grounds
pleaded in the Writ Petition and also observations of both the Courts
below in the matter of adjudicating the issue of grant of temporary
injunction.
5) What can be inferred is, Suit property is ancestral one.
Accordingly family arrangement was entered into on 24/05/2005.
2.7041.19 wp.doc
Even if it is claimed by the Respondent that said family arrangement
was not acted upon, Petitioner-Plaintiff based on various documents
has established his settled possession. Said documents are duly
considered by the Trial Court while granting temporary injunction
which are in the nature of 7/12 extract, permission for constructions,
property tax memo etc. As such, it can be inferred that, Petitioner-
Plaintiff is in settled possession of the Suit property. Apart from
above, it is settled position of law that even if there is presumption as
to existence of joint family, however, same cant be stretched to
presumption about the extent of joint possession.
6) That being so, the Appellate Court, in my opinion has
committed an error in vacating the injunction merely on the ground
that family arrangement was not acted upon.
7) As far as the Judgment and Decree delivered in R.C.S. No.
90/2019 is concerned, even if the said Decree is passed by consent,
the fact remains that documents referred above demonstrates settled
possession of the Petitioner over the Suit property which the Court
below has failed to appreciate.
8) That being so, order impugned dated 11/06/2018 passed by the
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learned District Judge is hereby quashed and set aside and the order
granting injunction on 12/02/2016 stands restored to file.
9) However, having regard to the fact that Suit is pending, even if
initial revenue entry is in favour of Petitioner which was subsequently
upset in favour of Respondent, Petitioner is restrained from creating
third party interest till the suit is decided.
10) Considering the fact that Suit is pending since 2015, hearing of
the same is expedited.
11) Petition stands allowed and disposed of in above terms.
[NITIN W. SAMBRE, J.]
