Mahaveer Lalitkumar Bora vs Surekha Vikramrao Chavhan And ...
2022 Latest Caselaw 5141 Bom

                                                                      AO.52.2018.odt


                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD
                         APPEAL FROM ORDER NO.52 OF 2018
                                        AND
                         CIVIL APPLICATION NO.9988 OF 2018

Mahaveer Lalitkumar Bora,
Age : 61 years, Occ. Housewife,
r/o. Nilesh Bungalow, Gurudatta Colony,
Old Malegaon Road, Chalisgaon,
Tq. Chalisgaon, Dist.Jalgaon                                ..Appellant
                 Vs.
1.       Sau. Surekha Vikramrao Chavhan,
         Age:61 years, Occ. Housewife,
         r/o. Nilesh Bungalow, Gurudatta Colony,
         Old Malgaon Raod, Chalisgaon,
         Tq. Chalisgaon, Dist. Jalgaon
2.       Vijay Bhikanrao Deshmukh (dead)
         Through Legal heirs
2A.      Ritesh Vijay Deshmukh
         Age:36 years, Occ. Service,
2B.      Amruta Vijay Deshmukh
         Age:25 years, Occ. Household,
2C.      Sau. Aruna Vijay Deshmukh,
         Age:57 years, Occ. Household,
2D.      Nilesh Vijay Deshmukh (dead)
         Through L.Rs.
2D1. Anuja Nilesh Deshmukh,
     Age : 33 years, Occ. Household,
2D2. Rajeshwari Nilesh Deshmukh,
     Age : 8 years, Occ. Education,
     Through natural Guardian (mother)
     2D1. Anuja Nilesh Deshmukh
     Age : 33 years, Occ. Household,
         All 2A to 2D2 r/o. Near Rajgad,
         Old Bungalow, Ghat Road,




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                                               2                                 AO.52.2018



         Chalisgaon, Tq. Chalisgaon,
         Dist. Jalgaon.
3.       Chitra Vithalrao Deshmukh,
         Age : 56 years, Occ. Household,
         r/o. Bhagwati Bungalow,
         Bhagya Nagar, Nanded
4.       Anita Jivan @ Milind Deshmukh,
         Age : 44 years, Occ. Advocate,
         r/o. Plot No.51, A.V.Mohite Township,
         Anand Nagar, Sinhagad Road,
         Pune - 51                                               ..Respondents

                                ----
Mr.Subodh P. Shah, Advocate for appellant
Mr.N.N.Desale, Advocate for respondent nos.2A to 2C
                                ----

                                    CORAM : R.G. AVACHAT, J.

DATE : JUNE 08, 2022 ORDER :-

The challenge in this appeal is to the order dated

19.04.2018 passed by learned Civil Judge, Senior Division, Jalgaon,

on application (Exh.6) in Special Civil Suit No.95 of 2015, whereby

the appellant (original defendant no.4) has been restrained from

alienating or creating third party interest in respect of the suit land,

being gut no.24/2.

2. Learned counsel for the appellant first took this Court

through certain paragraphs in the plaint. He would then submit that

respondent no.1 - original plaintiff, in fact, did neither make out a

3 AO.52.2018

prima facie case nor balance of convenience was shown to have

been in her favour. No reasons have been assigned by the trial

Court in support of the impugned order. According to learned

counsel, the application for temporary injunction was moved along

with the suit itself. The plaintiff, however, did not press the

application and then, after a long spell of time, urged for hearing of

the application for temporary injunction. According to learned

counsel, the appellant has purchased the land gut no.24/2 after

having given a public notice inviting objections, if any, to his

proposed transaction. None had offered any objection. The

appellant has paid a valuable consideration of Rs.45 Lakhs. The

vendor of the appellant had share of more than the land purchased

by the appellant herein. As such, neither the plaintiff nor other

defendants would be affected in getting their share in all other joint

family properties. Learned counsel would further submit that the

appellant did not intend to lay plots in the land purchased by him.

It could, at the most, be sold to one or two persons. No

complication would thereby be created in progress of the suit.

Learned counsel, ultimately, urged for allowing the appeal. He relied

on the decisions of this Court in the cases of (i) Chandrakant

Shankar Sapkal and anr. Vs. Anil Balbhim Khatavkar, 2002(4)

4 AO.52.2018

Mh.L.J. 889 and (ii) Bharat Petroleum Corporation Ltd. Vs. Videocon

Properties Ltd., 2014(6) Mh.L.J. 289.

3. Learned counsel for respondent nos.2A to 2C would, on

the other hand, support the impugned judgment and order.

4. Considered the submissions advanced. Perused the

averments in the plaint.

It is a suit for partition and separate possession of the

joint family properties. One Bhikanrao was the common ancestor.

He is survived by his widow and four children i.e. a son and three

daughters. The suit has been filed by one of the daughters,

Surekha. For better appreciation, the family tree is given below:-

Bhikanrao-Mathurabai

Vijay-Aruna Chitra @ Vibha Anita Sunetra Surekha (D-1) (D-1C) (D-2) (D-3) (Dead) (Plft.)

Ritesh Amruta Nilesh (Dead) - Anuja (D-1A) (D-18) (D-10) (D-1D1)

Rajeshwari (D-1D2)

5 AO.52.2018

Admittedly, the appellant (defendant no.4) is a stranger to the

family. He has purchased the land gut no.24/2, admeasuring 4H for

a consideration of Rs.45 Lakhs way back in 2009. A public notice

was issued before finalisation of the transaction. None had offered

objection. In view of this Court, the same may be helpful for the

appellant while the suit would be decided on its own merits and the

Court is called upon to adjust the equities.

5. As per the case of the respondent/plaintiff, partition of

the family properties was effected way back in July, 1956, between

her parents and brother - Vijay. A copy of the deed of partition is on

record. When the partition was effected, Vijay was minor. All his

sisters were born post partition of the family properties was effected.

As per the terms of the deed of partition, brother - Vijay would have

no right, title and interest in the properties that were given to the

share of his parents. Such a clause was inserted in the deed of

partition only with a view to secure the interest of the children that

may be born to the couple subsequently. This Court do not propose

to make any observation as regards said clause. It is for the trial

Court to interpret the same. Suffice it to say that the land

purchased by the appellant herein is not part and parcel of the

6 AO.52.2018

properties that has been allotted to the share of Vijay, through

whom he (appellant) claims.

6. Order XXXIX Rule 1(a) of the Code of Civil Procedure

states that where, in any suit, it is proved by an affidavit or

otherwise, that any property in dispute in a suit is in danger of being

alienated by any party to the suit, the Court may grant temporary

injunction to restrain such act.

7. True, before grant of a relief under Order XXXIX Rule

1(a) of Cr.P.C., the applicant is required to make out a prima facie

case besides showing that balance of convenience tilts in his/her

favour. The Court is also required to be satisfied that irreparable

loss would be caused if temporary injunction is not granted. There

can be no dispute over what has been observed by this Court in the

aforesaid two authorities relied on by learned counsel for the

appellant. Each case has to be decided on its own facts and

circumstances.

8. The appellant is a stranger to the family. He has,

admittedly, purchased the property, wherein the plaintiff and her

other two sisters have share besides so called share of his vendor.

The submissions made by learned counsel for the appellant would

7 AO.52.2018

suggest that the appellant intends to sell the land purchased by him.

Although he has purchased the suit land after giving public notice,

that would not take away the right, title and interest of other co-

owners. The submissions made by learned counsel that the land

may be sold to not more than 2-3 persons, itself indicates that the

subject-matter of the suit is in danger of being alienated by a party

to the suit. The trial Court has, thus, rightly observed that it would

create complication in the progress of the suit. No doubt the

principle of lis pendence is there to take care of the interest of the

plaintiff. Said principle is, however, not without exception. The

appellant may very well resort to Section 52 of the Transfer of

Property Act, 1882 and move an application to the trial Court

seeking permission for sale of the land purchased by him. If such an

application is moved, the same would be decided on its own merits.

9. Suffice it to say that the appellant is a stranger to the

family and has purchased the land wherein, the plaintiff and other

co-owners appear to have share. The trial Court is justified in

clamping injunction restraining the appellant from creating any third

party interest in the land purchased by him.

8 AO.52.2018

10. Since the trial Court has exercised its discretion rightly,

this Court is reluctant to interfere therewith. The appeal, therefore,

fails. The same is, thus, dismissed. The Civil Application stands

disposed of.

[R.G. AVACHAT, J.] KBP