1 wp-10505.11.sxw lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 10505 OF 2011 Sou Surekha Machhindra Hoval and ors. : Petitioners. Versus Subhash Rama (Ramchandra) Mane and ors. : Respondents. Mr. S G Deshmukh i/by Mr. Abhijit Kandarkar for the Petitioners Mr. D A Nalawade i/by Mr. R A Lokhande for the Respondents. CORAM : R M SAVANT, J. DATE : 09th December 2011 P.C. 1 The above Petition takes exception to the order dated 2/11/2011 passed by the learned District Judge­1, Islampur by which order the Appeal filed by the Respondents herein came to be allowed and the order granting temporary injunction passed by the trial Court came to be set aside. 2 The Petitioners herein are the original Plaintiffs in Regular Civil Suit No.147 of 2010 filed against the Respondent Nos.2 and 3 for partition and separate possession of their 3/5th share from the suit property and for injunction restraining the Respondent No.1 from obstructing the joint possession of the Petitioners at the suit property. In the said suit the Petitioners had filed an Application for temporary injunction against the Respondent No.1, 2 wp-10505.11.sxw who is an auction purchaser of 40 R land out of Gat No.2333/2 belonging to the family of the Petitioners, that he should not interfere with their possession. 3 It is required to be noted that the Respondent No.1 herein is the auction purchaser pursuant to the auction held by one Islampur Urban Co­ operative Bank in respect of the said 40 R land. The said auction had to be held as one Shivaji, son of Pandurang Kamble, the original owner had taken a loan from the said Bank and had mortgaged the property admeasuring 40 R to the said Bank. On default being committed by the said Shivaji in the payment of the said loan, the Bank had initiated proceedings for recovery of the said amount under Section 101 of the Maharashtra Co­operative Societies Act. A recovery certificate came to be issued, and in execution of the said recovery certificate, the said property admeasuring 40 R was put to auction wherein the offer of the Respondent No.1 for Rs.4,40,000/­ was found to be the highest, and therefore, the sale was confirmed in favour of the Respondent No.1 on 29/1/2010. These facts are necessary to be cited as they have bearing on the application for injunction filed by the Plaintiffs. 4 In so far as the trial Court is concerned, the application for injunction was allowed by the trial Court on the ground that the said Shivaji, who was the Karta of the family could have alienated the land for legal necessity, was the question which would have to be addressed in the said suit. The trial Court was of the view that the Respondent No.1 would at the highest 3 wp-10505.11.sxw be entitled to apply for partition of the property, but however, could not claim possession. The trial Court, therefore, by its order dated 24/8/2011 granted injunction prayed for by the Plaintiffs restraining the Respondent No.1 herein who is the Defendant No.1 to the said Suit, from interfering with the possession of the Plaintiffs in respect of the property in question. 5 Aggrieved by the said order dated 24/8/2011, the Respondent No. 1 i.e. the original Defendant No.1 had filed an Appeal being Misc. Civil Appeal No.19 of 2011. The said Appeal has been allowed as indicated above by the impugned order dated 2/11/2011. The First Appellate Court took into consideration the auction that was held by the Bank in question and offer of the Respondent No.1, which was accepted in the said auction. The First Appellate Court also addressed the Issue of possession and on the basis of the revenue entries in favour of the Respondent No.1 came to a conclusion that the possession of the said 40 R land was also with the Respondent No.1. In so far as issue as to whether there was legal necessity etc, the First Appellate Court observed that undoubtedly the said Issue could be tried in the suit in question. However, on the said ground the First Appellate Court was of the view, the trial Court had erred in granting injunction as prayed for by the Plaintiffs. 6 It is required to be noted that the auction of the said 40 R land was held on 23/11/2009 and the sale was confirmed in favour of the Respondent No.1 on 29/1/2010. No objection to the said auction was taken by 4 wp-10505.11.sxw the Petitioners/Plaintiffs. The instant suit is also filed on 7/4/2010 long after the said process was completed. 7 In my view, the reasons mentioned by the First Appellate Court for upsetting the order of the trial Court, in the conspectus of facts, as stated herein above, are unexceptional and do not merit interdiction at the hands of this Court in its writ jurisdiction under Article 227 of the Constitution of India. The above Writ Petition is accordingly dismissed. The protection granted by the First Appellate Court on 8/11/2011 to continue for a period of six weeks from date. [R.M.SAVANT, J]