(1) WP. 4095.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4095 OF 2010 Shriram S/o Tukaram Mahajan, Age : 44 years, Occu: Agri., R/o Ainpur, Taluka - Raver, District - Jalgaon .. Petitioner (Orig. Plaintiff) VERSUS 1] Vishwanath S/o Ganu Patil, Age : 55 years, Occu.: Agri., R/o Ainpur, Tq. Raver, Dist. Jalgaon - (Orig. Deft.no.2) 2] Ramdas s/o Khema Mahajan, Age : 58 years, Occu.: Agri., R/o as above .. Respondents Mr. P.R. Katneshwarkar, Advocate for the Petitioner Mr. V.J. Dixit, Sr. Advocate h/f. Mr. Suraj Prakash Tiwari, Advocate for the respondent no.1 Mr. N.N. Desle, Advocate for the respondent no.2 ... CORAM : V.R. KINGAONKAR, J. DATED : 24TH JUNE, 2010 ORAL JUDGMENT:- 1] Rule. Rule made returnable forthwith and heard finally by consent of the parties. 2] The petitioner is original plaintiff. He filed suit (R.C.S. no.90 of 2009) for declaration and (2) WP. 4095.2010 injunction. Dispute relates to agricultural land bearing gat no. 868 admeasuring 00H 97R. Out of the said land, the disputed fragment situated at eastern side, comprises of 48.50R is the subject matter of real dispute. The case of the petitioner is that the land was jointly acquired and therefore, he and the respondent no.1 are the co-sharers thereof. He apprehended that the disputed eastern fragment would be taken over by the respondent no.2 on account of the sale deed executed by the respondent no.1 in his favour. He sought temporary injunction in the suit by filing application (Exh.6). The learned Civil Judge (Junior Division), Raver granted the injunction whereby the respondent no.1 (defendant no.2) was restrained from unlawfully taking over possession of the disputed land. The respondent no.1 preferred an Appeal (Misc. C.A. 157 of 2009) which came to be allowed. Feeling aggrieved by the de-clamping of the interim injunction, the petitioner has filed this Petition. 3] Heard learned counsel for the parties. Contention of the learned senior counsel Mr. Dixit is that though, the land gat no. 868 is the common property of the petitioner and the respondent no.1 yet the eastern fragment is separate and was in possession of vendor of the respondent no.1 (defendant no.2). He would submit that the sale deeds indicated separate portions and therefore, the (3) WP. 4095.2010 defendant no.1 was exercising separate possession of the disputed fragment. He would submit that the defendant no.2 is now in possession of the separate fragment but the petitioner is making endeavour to dis-possess the defendant no.2 (respondent no.1) under the guise of interim injunction. 4] It may be gathered that joint ownership of the plaintiff and the defendant no.1 is explicit from the record and therefore, the plaintiff (petitioner) cannot be ousted from joint enjoyment of land gat no. 868 or any part thereof. It may be true that the disputed portion of eastern side was being separately cultivated by the defendant no.1 prior to alienation in favour of the defendant no.2. Still however, such possession of the defendant no.1 cannot be regarded as exclusive possession of himself as the owner. It was the possession of the defendant no.1 (respondent no.2) for himself and the plaintiff (petitioner). The joint enjoyment of a co-owner cannot be denied by another co-owner. The nature of injunction sought by the petitioner would show that he sought the interim injunction only against the defendant no.2 (respondent no.1) alleging that the latter shall not dis-possess him from the joint possession. The learned counsel for the petitioner would submit that the interim injunction granted by the trial Court is in the same terms and that the trial Court did not prohibit the defendant no.1 from entering into the (4) WP. 4095.2010 suit land but the prohibitory injunction is clamped on the defendant no.2 alone, thereby restraining him from dis-possessing the plaintiff from joint possession/enjoyment of the suit land. The first appellate Court committed error in law and fact while de-clamping the injunction. The first appellate Court dismissed the application of the petitioner only on the ground that he had no right to take exception to the transaction of sale executed by the defendant no.1 in favour of the defendant no.2. This observation of the first appellate Court is quite arbitrary and perverse. In this view of the matter, the impugned order is un-sustainable. 5] In the result, the Petition is allowed. The impugned order is set aside. The trial Court's order is restored instead of the impugned order. Rule made absolute accordingly. The suit shall be expedited for final hearing and shall be disposed of within a period of 1 year by the trial Court. Sd/- [V.R. KINGAONKAR, J.] arp