Bombay High Court
Kalpana Suhas Suryavanshi And Ors vs Jayant Suryaji Salunkhe And Another on 19 March, 2025
2025:BHC-AUG:7972
(1) AO-49-2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPEAL FROM ORDER NO.49 OF 2022
WITH
CIVIL APPLICATION NO.11449 OF 2022
AND
APPEAL FROM ORDER NO.11 OF 2023
WITH
CIVIL APPLICATION NO.2046 OF 2023
AND
APPEAL FROM ORDER NO.13 OF 2023
WITH
CIVIL APPLICATION NO.2052 OF 2023
AND
APPEAL FROM ORDER NO.12 OF 2023
WITH
CIVIL APPLICATION NO.2049 OF 2023
1. Smt. Kalpana Suhas Suryavanshi,
Age 59 yrs., Occ. Household,
Sneh Sadan, Gr. Floor, Ram Maruti Road,
Cross Lane No.3, Naupada,
Thane-400602
2. Shri. Rajesh Anandprakash Chaudhari,
Age 58 yrs., Occ. Retired,
Permanent Address: Happy Colony,
Kothrud, Pune-411038
Present Address: Dispossessed since 12.04.2022
from Vitthal Niwas, Near Samartha
Wagdevta Mandir, Malegaon Road,
Dhule 424001
3. Smt. Sunanda Rajesh Chaudhari,
Age 57 yrs., Occ: VRS,
Permanent Address: Vitthal Niwas,
Near Samartha Wagdevta Mandir,
Malegaon Road, Dhule 424001
Dispossessed since 12.04.2022
from the above address
4. Smt. Suman Suryaji Salunkhe, (Died)
Expired on 24.01.2022 at Vitthal Niwas,
Near Samartha Wagdevta Mandir,
Malegaon Road, Dhule 424001
(2) AO-49-2022.odt
5. Smt. Kumudini Krishnadutta Iyengar,
Age 54 yrs., Occ: Household,
Permanent Address: 51 First Main,
Yadavgiri, Mysore - 570020,
Karnataka Dispossessed since 12.04.2022
from Regd. Address: C/o. Sunanda R. Chaudhari,
Vitthal Niwas, Near Samartha Wagdevta
Mandir, Malegaon Road, Dhule 424001
6. Smt. Vandana Kailas Shinde,
Age 52 yrs., Occ: Service,
R/a. Mhasoba Lane, Shinde Bldg.,
Near Hemlata Talkies, Nashik 422011 ..Appellants
(Org. Plaintiffs)
Versus
1. Shri. Jayant Suryaji Salunkhe,
Age: 56 yrs, Occ: Garage,
R/a: Vitthal Niwas, Near Samartha
Wagdevta Mandir,
Malegaon Road, Dhule 424001
2. Shri. Ranjit Suryaji Salunkhe,
Age: 50 yrs, Occ: Service,
R/a: Vitthal Niwas, Near Samartha
Wagdevta Mandir,
Malegaon Road, Dhule 424001 ..Respondents
(Org. Defendants)
...
Mr. C. S. Joshi a/2 Mr. S. N. Lavekar and Mrs. Sunanda Konkar,
Advocate for Appellants.
Mr. Mukul S. Kulkarni, Advocate for Respondent Nos.1 and 2.
...
CORAM : S. G. CHAPALGAONKAR, J.
RESERVED ON :- 27th JANUARY, 2025.
PRONOUNCED ON :- 19th MARCH, 2025.
ORDER:
-
1. The present Appeals from Orders filed by original plaintiffs
impugning common order dated 05.05.2022 passed by 4 th Joint
Civil Judge, Senior Division, Dhule below Exhibits 5, 25, 82 and 99
in Special Civil Suit No.62/2021.
(3) AO-49-2022.odt
2. Initially, common Appeal was filed. However, on objection by
respondents, leave was granted under order dated 21.12.2022 to
file independent Appeal against each of the order passed below
respective Exhibits. With a view to understand challenge in
individual Appeals, description of each of Exhibit decided under
impugned order is given herewith in tabular form:
Sr. Appeal From Civil Application for Against Relief Prayed
No. Order Application at
01. A.O. NO.49 of C.A.No.11449 of 2022 Exhibit 25 Filed For mandatory
2022 1) to restrain from common by Rajesh, injunction of
enjoyment. Sunanda and possession.
2) To restrain from entering Suman I.e Org.
Varandah. Defendant Nos.1
3) To reopen closed access to 3 (Now
4) Permission to sale share in Plaintiff Nos.2 to
property 4)
5) Not to change the nature of
property
02. A.O. NO.11 of C.A.No.2046 of 2023 Exhibit 5 Filed by Not to obstruct
2023 1) Not to obstruct common Kalpana Org. common
enjoyment of suit property. Plaintiff possession of
2) To reopen access which is plaintiff and
closed. defendant nos.6
and 7.
03. A.O. NO.12 of C.A.No.2049 of 2023 Exhibit 99 Filed -Not to change
2023 1) Not to change the nature of by Rajesh-Org. nature of suit
property. Defendant No.1 property.
2) Not to obstruct common (Now Plaintiff -In the backdrop
enjoyment. No.2.) of bamboo
fencing.
04. A.O. NO.13 of C.A.No.2052 of 2023 Exhibit 82 Filed Not to alienate
2023 1) To sale their share in the by Jayant & the suit property.
suit property. Rajit-Org.
2) To alienate their share in Defendant Nos.6
the suit property. & 7 (Now
Defendant Nos.1
& 2)
3. It is apparent from aforesaid chart that aforesaid
applications are filed seeking relief of temporary or mandatory
injunction by plaintiffs and defendants against each other. The
(4) AO-49-2022.odt
original plaintiffs are seeking relief of mandatory injunction and
possession against defendants, whereas defendants are seeking
relief of injunction that plaintiffs shall not alienate or create third
party interest in suit property.
4. Principally, suit has been instituted seeking decree of
partition, separate possession and perpetual injunction from
interfering in joint possession of plaintiffs. The suit property is
described as final Plot Nos.131 and 142 admeasuring 18.13R
situated at Survey No.459/2, Malegaon Road, Dist. Dhule. It was
originally owned by Yashwant Vithoba Salunkhe. He expired on
12.02.1974 leaving behind his wife-Chandrabhagabai, son-Suryaji
and daughter-Saroj. Suryaji expired on 08.07.2019, whereas Saroj
expired on 30.05.2019. The plaintiffs are legal heirs of Suryaji.
According to plaintiffs, suit property is joint family property of
plaintiffs and defendants. They were jointly possessing the same.
Recently, dispute arose as regards to enjoyment of property. The
wife of defendant no.7 is an Advocate by profession and she is
insulting plaintiffs and raising day to day quarrels and giving
threats to dispossess them. Some instances of unpleasant incident
of using physical force against each other are given. The plaintiffs
assert that they are being forced to abandon their possession and
defendants are claiming exclusive right over suit property. Per
contra, defendants assert that plaintiffs have no right in the suit
(5) AO-49-2022.odt
property. They plead that suit is bad for non-joinder of parties, so
also barred by limitation.
5. The learned Trial Judge considered all aforesaid applications
and passed impugned order granting temporary injunction
restraining plaintiffs and defendants from alienating or changing
nature of suit property until final adjudication of suit.
6. Mr. Joshi, learned Advocate appearing for appellants submits
that this is a classic case where right of female member in joint
family property is prejudiced by act of male members. By inviting
attention of this Court to various documents and contentions in
applications filed on record of Trial Court, it is submitted that
plaintiffs were enjoying joint ownership and possession of suit
property alongwith defendants. However, impugned order has
been passed with predetermined mind. The prayer for mandatory
injunction and restoration of right of access of plaintiffs has been
prejudiced by impugned order. He would submit that share in joint
family property can be alienated and there cannot be restriction to
transfer, although it may be subject to rigors of Customary Hindu
Law. According to him, plaintiffs were entitled for mandatory
injunction and restoration of their possession in suit property. The
Trial Court prolonged to pass order on Exhibit 5 and Exhibit 25
and erroneously opined that Section 6 of Specific Relief Act cannot
be invoked to restore joint possession and enjoyment of property by
(6) AO-49-2022.odt
plaintiffs alongwith defendants. He submits that documents on
record clearly shows that plaintiffs were in possession over suit
property till 08.04.2022, which has been illegally disturbed by
defendants. He submits that Courts have the power to teach a
lesson to litigants, who are dishonest and use criminal force
against co-sharers. According to him, documents at Exhibits 51
and 52 show that appellant no.3-Sunanda was continuously in
possession and occupation of portion of suit property. The court
cannot be a silent spectator, when her right for enjoyment and
possession has been prejudiced. In support of his contentions he
relies upon number of judgments passed by Supreme Court of India
and various High Courts.
7. Per contra, Mr. Kulkarni, learned Advocate appearing for
respondents/defendants takes this Court through pleadings and
prayers employed in plaint and submits that there is no assertion
in entire plaint, by which specific area in possession of plaintiffs in
suit property can be ascertained. He would submits that there is
no pleading of dispossession from joint possession. According to
him, in absence of such pleadings, various reliefs as claimed under
Exhibits cannot be granted. He would submit that plaintiffs are
claiming injunction to not to disturb from joint possession. He
would further point out that there is ample material to show that
plaintiffs are intending to create third party right in suit property,
(7) AO-49-2022.odt
although they cannot have right to sell out or alienate undivided
share in suit property.
8. Having considered submissions advanced and after going
through record, particularly pleadings in suit, it is apparent that
plaintiffs and defendants are claiming their individual right in
ancestral property. The suit property was apparently owned by
Yashwant Vithoba Salunkhe and thereafter, his son Suryaji and
daughter Saroj. The plaintiffs and defendants are asserting their
rights through Suryaji and Saroj. The amended plaint shows that
relief of partition and separate possession of suit property sought
with consequential reliefs of perpetual injunction against
defendant nos.1 and 3 from obstructing or interfering in joint
possession of plaintiffs over suit property. From reading of entire
plaint, it is not discernible that plaintiffs were in possession of
specific portion of property and immediately before filing suit, they
were dispossessed. In absence of description of specific property on
which plaintiffs' claimed their exclusive possession and then
dispossession, there is no reason to consider grant of relief of
mandatory injunction or restoration of possession. It is trite that,
interim relief can be granted in aid of final relief claimed in suit.
The grant of interim relief beyond pleadings and prayers in suit
would not be germane.
(8) AO-49-2022.odt
9. Although Mr. Joshi, learned Advocate appearing for
appellants endeavours to bring to notice of this Court possession of
plaintiffs over specific portion of property on the basis of allied
documents, in absence of pleadings in plaint such contentions
cannot be considered. The legal position as canvassed by learned
Advocate appearing for plaintiffs cannot be disputed. It is trite
that, in case co-owner, who is expressly or impliedly put into
exclusive enjoyment of joint property, his possession can be
protected against co-owners and in case he is dispossessed, he can
be restored into possession. In facts of the present case, in absence
of specific pleadings as to exclusive possession of property and
dispossession immediately before filing suit or during pendency of
suit, interim relief of mandatory injunction cannot be granted.
10. Second contention raised on behalf of appellants that right to
alienate share in joint family property cannot be taken away by
granting prohibitory order. It is trite that, interest of coparcener in
joint family property can be alienated and purchaser would be
entitled to step into shoes of coparcener. However, joint owner or
coparcener has no right to alienate specific share in property. In
present case, it has been surfaced on record that plaintiffs were
intending to sell out their interest to third party. Even from their
pleadings it can be discerned that they are intending to create
third party right in suit property. In case of such alienation,
(9) AO-49-2022.odt
particularly in respect of house belonging to undivided family,
great prejudice may cause to other members. In that
circumstances, keeping in mind interest of parties, certainly
injunction can be granted restraining transfer of joint family
property. Even in such case, right of preemption can be exercised
by party in possession. Looking to the totality of circumstances,
this Court is of the view that interference in impugned order would
be unwarranted. However, looking to the nature of dispute,
propriety requires that suit itself is taken up for expeditious
hearing and final disposal for which parties shall co-operate.
11. In result, Appeal from Orders are dismissed. However, Trial
Court shall endeavour for expeditious disposal of suit, in any case
within period of one year from the date of this order. Parties shall
not seek unnecessary adjournment and shall co-operate for early
disposal.
12. In view of dismissal of Appeals from Order, pending Civil
Applications also stand disposed of accordingly.
(S. G. CHAPALGAONKAR)
JUDGE
Devendra/March-2025
