Bombay High Court
Tejas S/O Kamlakar Chaware And Others vs Upama Bhanukumar Daryapurkar (Dead) ... on 16 July, 2025
2025:BHC-NAG:6862
A.O. 51-23 J.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
APPEAL FROM ORDER NO.51 OF 2023.
1. Tejas s/o Kamalkar Chaware, Aged about 48
years,Occupation - Business.
2. Preeti w/o Tejas Chaware,
Aged about 35 years, Occupation - Household
work.
Both 1 and 2 R/o. Mahavir Marg, Karanja
(Lad), District - Washim.
3 Swarupa Sarvesh Sakale
Aged about 35 years, Occupation - Household,
R/o. Morya Indrayani Nagar, Bhosari, Pune,
Tq. & District - Pune.
Through its Power of Attorney (Appellant
No.1) i.e Tejas Kamalakar Chaware,
Aged about 42 years, Occ: Business, Both R/o.
Mahavir Marg, Karanja
(Lad), District - Washim.
4 Shrutika Pankaj Nandgaonkar,
Aged about 33 years,
Occ.-Household, C/o Pankaj Prafulla
Nandgaonkar, Plot No. 1706 Lalit D,
Near Dhayriphata, Nanded City,
Pune, District - Pune.
Through its Power of Attorney (Appellant
No.1) i.e Tejas Kamalakar Chaware,
Aged about 42 years, Occ.-Business, Both R/
o. Mahavir Marg, Karanja (Lad), District -
Appellants
Washim.
Versus
1. Upama Bhanukumar Daryapurkar,
(Dead) Through L.R's.
Darshana alias Tejaswini Dipak Sangai,
Aged about 62 years,
Occupation - Household,
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A.O. 51-23 J.odt
2. Megha Vivek Sangai, Aged about 60 years,
Occupation - Household, Nos. 1 and 2, R/o.
Near Jain Mandir, Post Anjangaon Surji,
District - Amravati.
3. Ravindra Ramasa Chaware,
Aged about 77 years, Occupation Agriculturist,
R/o. Mahavir Marg, Karanja (Lad), District-
Washim.
4 Ashok Mohanlal Kothari,
Aged about 65 years,
Occupation - Business,
R/o. Vidya Nagar, Akola,
Tq. & District - Akola.
5 Dilawar Haji Kasam,
Aged about 54 years, Occupation - Business,
R/o Mangalwara, Karanja, District - Washim
6. Yusuf Haji Shafi Punjani,
Aged about 54 years, Occupation - Business,
7 Rizwan Haji Shafi Punjani,
Aged about 44 years, Occupation - Business,
Nos. 6 & 7, R/o. Punjani Complex, Karanja
(Lad), District - Washim.
8 Suraj Punjabrao Jirapure, Aged about adult, R/
o. Kherda (Jirapure), Tq. Karanja, District -
Washim.
9. Mahavir Ramasa Chaware, (Dead) Through
L.R's.
9A. Deepti Jinendra Lad,
Aged about 48 years,
Occupation Household R/0 103, Maa Shakti
Apartment, Indiradevi Town, Middle Ring
Road, Vatoda Nagpur Tq. & Dist. Nagpur
444009 (deleted)
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A.O. 51-23 J.odt
9B.Supriya Sandeep Deolasi, Aged about 45
years,Occupation Household R/o Dwarkadish
Apartment, Pimpale Saudagar Pune Tq. & Dist.
Pune 411 027 (deleted)
9C. Kiran Rahul Nandgaonkar,
Aged about 41 years,Occupation Household R/
o H-2-501, Highland Gardens, Dhokali,
Opposite Twinkle Towers Thane (W) Tq. &
Dist. Thane(deleted)
9D. Mamta Tushar Agrekar
Aged about 39 years, Occupation Household
R/o J-903, ISCKON Platinum, Near Bopal
Circle, Bopal Ahmadabad Circle, Tq. &
Ahmadabad 380 058 (deleted)
10 Santosh Chaganlal Raibagkar,
Aged about 63 years, Occupation - Doctor,
R/o. Shivam 1st Floor, Jalaram Temple Road,
Old Shrada Mandir Cross Road, Paldi, Ellis
bridge, Ahmedabad.
11 Rajul Shashikant Khandare, (Dead) Through
L.R's.
11A. Sonal Shreyas Sanghai (deleted) Aged
about 32 years, Occupation - Household, R/o.
Block J, Kumar Priya Darshan, Jai Bhavani
Nagar, Pashan Pune Tq. & Dist. Pune.
12 Rajesh Changanlal Raibagkar,
Aged about 56 years,
Occupation - Service, R/o. Sanmmati,
Yogeshwar Society Irma Road, 13 Ajanta
Park,Mangalpura Road, AT and post
District - Anand (Gujrat).
13 Shashikant Shrikumar Khandare
Aged about 64 years, Nagpur.
Occupation - Retired,
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A.O. 51-23 J.odt
R/o. Shashikant 32, Bajaj Nagar,
In front of Basket Ball Ground,Nagpur
14 Vrunda Suhas Mandge, Aged about 66 years,
Occupation - Doctor, Nagpur.
R/o. Shashikant 32, Bajaj Nagar,
In front of Basket Ball Ground, Nagpur. Respondents.
Mr.Palash K.Mohta, Advocate for Appellants.
Mr.C.A.Joshi, Advocate for respondent Nos.1 and 2.
CORAM: MRS. VRUSHALI V. JOSHI, J.
Judgment reserved on :-10/07/2025.
Judgment pronounced on :- 16/07/2025
JUDGMENT :
Heard.
(2) Admit. Heard finally by consent of the learned counsel
appearing for the respective parties.
(3) The appellants have challenged the order dated
03.07.2023 passed by the learned Civil Judge, Senior Division, Mangrulpir
allowing the application below Exhibit 5 for temporary injunction and
restrained the defendants from alienating, transferring or creating third party
interest in the suit property till the disposal of the main suit.
(4) The facts of the case in brief are as under:-
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A.O. 51-23 J.odt
The appellants are the original defendant Nos. 2,3,4 and
5 in Civil Suit No.2 of 2018. The respondent Nos.2 and 3 and late
Bhanukumar Daryapurkar are the legal heirs of original plaintiff. During the
pendency of suit, Bhanukumar Daryapurkar also died. The original plaintiff
Upama Bhanukumar Daryapurkar has filed the Civil Suit against the
appellants for partition, separate possession, cancellation and declaration and
permanent injunction.
(5) It is the case of the plaintiff that Ramasa Padmasa
Chaware, Chandrabai Padmasa Chaware and Sakhubai Padmasa Chaware
possessing the ancestral property, which is mentioned in the plaint, Sakhubai
Ramasa and Chandrabai died intestate and the original plaintiffs have 1/6 th
share in the properties. It was joint family property. However, there was a
partition between them and they became the owner of the respective share.
Sakhubai and Chandrabai died before Ramasa and therefore, the original
plaintiffs became the joint owner of share of those properties along with other
legal heirs. It is alleged that deceased Kamlakar, who is the brother of original
plaintiff No.1, prepared a false will of Ramasa Chaware behind the back of
original plaintiffs and other legal heirs. Few of the properties are sold by the
appellant no.1 and therefore, the defendants have filed the Civil Suit. The
original plaintiff prayed that a decree of partition, and separate possession and
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A.O. 51-23 J.odt
defendant and direct defendant Nos.2 to 4 to hand over the possession of
1/6th share of each of the suit properties. The trial court has granted temporary
injunction and restrained the defendants from creating third party interest in
the suit property till the decision of the suit.
(6) The learned counsel appearing for the petitioner has
stated that there was a partition between deceased Ramasa, Sakhubai and
Chandrabai, Kamlakar and Ravindra in the year 1960. It was oral partition.
The original plaintiff Upama got shares of Bombay Dying by said oral
partition, the possession of respective properties were handed over to all the
parties. Mutations were effected in the revenue record on the basis of the said
oral partition. Sakhubai expired in the year 1984 and Chandrabai expired in
the year 1997. All the shares in the properties of Sakhubai and Chandrabai
came in the possession of Ramasa. Thereafter, on 30.08.2004, Ramasa
executed a will and bequeathed all the shares in the properties to Kamlakar.
Kamlakar, Rajashree and the appellant Nos.1 and 2. Ramasa expired on
08.08.2005. The will executed by Ramasa is acknowledged by respondent
No.3 Ravindra in a mutual agreement dated 11.09.2015. On the basis of said
will, the mutation of properties were effected in the revenue record.
Therefore, the appellants have denied that those properties are the ancestral
properties.
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A.O. 51-23 J.odt
(7) Deceased Kamlakar moved an application to TILR,
Karanja on 14.12.2005 for mutating his name on the Nazul properties as per
will. The plaintiff was aware in the year 2005, itself that deceased Ramasa had
executed a will. However she did not raise any objection and kept mum. It is
not correct that the original plaintiff got knowledge of the will deed on
13.10.2015. Therefore, the suit is hopelessly barred by limitation. Hence,
prayed to set aside the order passed by the trial court granting temporary
injunction to the respondents.
(8) The learned counsel appearing for respondents has stated
that number of properties are there. Will deed is itself bogus. Only after the
mutation entries in the revenue record, the plaintiff came to know about the
entries recorded on the basis of the will of Ramasa. There is no question of
limitation as she came to know it in the year 2015. She is in possession of the
suit property. Many properties are alienated by the appellants and therefore,
the trial Court has rightly granted the injunction. Hence, prayed to dismiss the
appeal against order.
(9) Heard the learned counsel appearing for the respective
parties.
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A.O. 51-23 J.odt
(10) It is an admitted fact that the appellants and respondents
are the close relatives and this is a property dispute. It is not disputed that the
properties, which are mentioned in the plaint are the ancestral properties,
which the appellants have stated as the self acquired properties. According to
the plaintiffs, the share which he has received in will of Ramasa, he has
become the absolute owner of the suit property and therefore, he is the only
owner of the said property. The appellants are the legal heir of the deceased
Kamlakar and he is also the power of attorney holder for other defendants.
(11) It appears from the record that the plaintiffs case is that
the share of Chandrabai and Sakhubai, who died before Ramasa came in the
possession of Ramasa after the death of both of them and Ramasa has executed
the will including the said properties. It appears from the family tree, which is
filed on record that Upama is the daughter of Ramasa and Chandrabai. The
entire property was bequeathed in the name of Kamlakar and appellants Tejas,
Swarupa and Shrutika are the legal heirs of Kamlakar.
(12) According to the appellants, the original plaintiff-Upama
has received the share of Bombay Dying in her share at the time of oral
partition. As the oral partition was there and the mutation entries were
recorded as per the said oral partition, the partition was acted upon. As the
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A.O. 51-23 J.odt
property was in the name of Ramasa, which comes in his share was bequeathed
in the name of Kamlakar. On perusal of plaint, it appears that number of
properties are there, which are mentioned as the properties on which the name
of Kamlakar and his legal heirs is recorded in mutation entries.
(13) While discussing about prima facie case and prima facie
title this Court in the case of Chetan D.Shelke and ors. Vs. Savannah Vasant
Lawns Tower and ors. reported in 2025 SCC OnLine Bom.130 has placed
reliance on the observations of Hon'ble Apex Court in paragraph Nos.21 and
22:-
"21. The Supreme Court in the case of Dalpat Kumar
& Anr. Vs. Prahlad Singh and Ors.13 in paragraph No.5
of the said judgment has commented upon the existence
of the prima face right and infraction of the enjoyment of
the property or the right as to whether the condition for
the grant of temporary injunction or otherwise. What is
crucial to be noted is that prima facie case is not to be
confused with prima facie title which has to be established
on evidence and on trial. Paragraph No.5 of the aforesaid
judgment of the Supreme Court reads thus:-
"5. Therefore, the burden is on the plaintiff by evidence
aliunde by affidavit or otherwise that there is "a prima
facie case" in his favour which needs adjudication at the
trial. The existence of the prima facie right and infraction
of the enjoyment of his property or the right is a
condition for the grant of temporary injunction. Prima
facie case is not to be confused with prima facie title
which has to be established, on evidence at the trial. Only
prima facie case is a substantial question raised, bona fide,
which needs investigation and a decision on merits.
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A.O. 51-23 J.odt
Satisfaction that there is a prima facie case by itself is not
sufficient to grant injunction. The Court further has to
satisfy that non-interference by the Court would result
in"irreparable injury" to the party seeking relief and that
there is no other remedy available to the party except one
to grant injunction and he needs protection from the
consequences of apprehended injury or dispossession.
Irreparable injury, however, does not mean that there
must be no physical possibility of repairing the injury, but
means only that the injury must be a material one, namely
one that cannot be adequately compensated by way of
damages. The third condition also is that "the balance of
convenience" must be in favour of granting injunction.
The Court while granting or refusing to grant injunction
should exercise sound judicial discretion to find the
amount of substantial mischief or injury which is likely to
be caused to the parties, if the injunction is refused and
compare it with that it is likely to be caused to the other
side if the injunction is granted. If on weighing competing
possibilities or probabilities of likelihood of injury and if
the Court considers that pending the suit, the subject-
matter should be maintained in status quo, an injunction
would be issued. Thus the Court has to exercise its sound
judicial discretion in granting or refusing the relief of ad
interim injunction pending the suit."
22. From the above it is seen that the fundamental
principle required to be followed by the Court is that the
Court should adopt whichever course appears to carry a
lower risk of injustice if it turns out to have been wrong
while granting interim injunction".
(14) The appellants have also relied on the judgment in the
case of M/s Kachhi Properties, Satara and etc. Vs.Ganpatrao Shankarao Kadam
and ors. reported in 2010(5) AIR Bom R 353. In paragraph No.22 it is
observed as under:-
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A.O. 51-23 J.odt
"22. Thus a plaintiff need not at all
worry about transfers pendente lite and so,
occasions for invoking powers under Order
XXXIX, Rules 1 and 2 would arise only in
rare cases where the plaintiff can demonstrate
that rule of lis pendens is inadequate to
protect plaintiff's interest".
(15) It is the contention of the appellants that the trial court
has not discussed about prima facie case and irreparable loss caused to plaintiff
. The plaintiff has relied on the judgment in the case of Shyam Sel and Power
Limited and anr. Vs.Shyam Steel Industries limited reported in (2023) 1 SCC
634.
"In any event, though the Division Bench
of the High Court observes that for deciding
the question with regard to grant of interim
injunction, it has to put itself in a position as
if it was moved to pass an interim order in the
suit, it even fails to take into consideration
the principles which a court is required to
take into consideration while deciding such
an application. It is a settled principle of law
that while considering the question of grant
of interim injunction, the courts are required
to consider the three tests of prima facie case,
balance of convenience and irreparable
injury. Besides a stray observation that the
respondent plaintiff has made out a prima
facie case, there is no discussion as to how a
prima facie case was made out by the
respondent plaintiff. In any case, insofar as
the tests of balance of convenience and
irreparable injury are concerned, there is not
even a mention with regard to these in the
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A.O. 51-23 J.odt
impugned judgment and order of the
Division Bench of the High Court. In our
view, the approach of the Division Bench of
the High Court was totally unwarranted and
uncalled for. We refrain ourselves from using
any stronger words".
(16) The plaintiff was aware about will deed and she has not
taken any action at the earlier stage. The appellants have relied on the
judgement in the case of Mandli Ranganna and other Vs. T. Ramachandra and
ors reported in (2008) 11 SCC.
"Grant of injunction is an equitable relief. A
person who had kept quiet for a long time and
allowed another to deal with the properties
exclusively, ordinarily would not be entitled to
an order of injunction. The court will not
interfere only because the property is a very
valuable one. We are not however, oblivious of
the fact that grant or refusal of injunction has
serious consequence depending upon the
nature thereof. The courts dealing with such
matters must make all endeavours to protect
the interest of the parties. For the said purpose,
application of mind on the part of the courts is
imperative. Contentions raised by the parties
must be determined objectively".
(17) Some of the properties were sold by the legal heirs of
Kamlakar. The will deed will be decided only after considering the evidence
which includes the share of Sakhubai and Chandrabai. The trial court has
considered the mutation entries of all the properties, how it is recorded in the
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A.O. 51-23 J.odt
name of the appellants and considering the case laws, the trial court has
granted the injunction stating that prima facie case is made out against the
plaintiff. It is necessary to consider the evidence while deciding the will deed,
which Ramasa Chaware has executed and whether, the plaintiff is having 1/6 th
of share in the suit properties. As it requires the evidence and number of
properties are mentioned, the trial court has rightly granted the temporary
injunction during the pendency of the suit. Hence, no interference at the
hands of this Court is required. The appeal against order stands dismissed.
[MRS. VRUSHALI V. JOSHI, J.]
PAGE 13 OF 13
Signed by: Kavita P Tayade
Designation: PS To Honourable Judge
Date: 17/07/2025 18:36:54
