: 1 : SD IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.38 OF 1988 SECOND APPEAL NO.38 OF 1988 SECOND APPEAL NO.38 OF 1988 Parubai Bhagwan Koli ...Appellant V/s. 1.Zahirabi Marda Allabax Bagwan, Deceased, . Thru’ LRs. :- . 2.Jainabai Marda Mahamad Husain Bagwan . 3.Amirbi Marda Dastgir Bagwan . 4.Mijasbi Marda Ismail Bagwan . 5.Jamirabi Allabax Bagwan . 6.Rasadbi Marda Makbul Bagwan . 7.Amulal Allabax Bagwan, Deceased, . Thru’ LRs:- . 7-A.Hamju Amulal Bagwan . 7-C.Majju Amulal Bagwan . 7-E.Sugarbai Marda Amulal Bagwan ...Respondents Mr.M.R. Deshpande, Advocate, for the Appellant. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 6TH FEBRUARY, 2008. DATE : 6TH FEBRUARY, 2008. DATE : 6TH FEBRUARY, 2008. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The appellant is the original 1st defendant. Respondent Nos.1 to 6 are the original plaintiffs and the 7th respondent is the original 2nd defendant. With a view to appreciate the submissions made by the learned Advocate for the appellant, it will be necessary to refer to facts of the case in brief. The suit land is Survey No.827/1 which is now numbered as Block No.2151 admeasuring 3 Hectare and 8 R. The said land originally belonged to one Allabax Bagwan who : 2 : died in the year 1962. The 1st respondent is the widow of said Allabax and 2nd to 6th respondents are the daughters of the deceased Allabax. The 7th respondent Amulal is the son of the deceased Allabax. The deceased Allabax was holding other properties apart from the suit property. 2. According to the case of the 1st to 6th respondents, the name of the 7th respondent was erroneously entered in respect of the suit property. According to the case of the 1st to 6th respondents, the appellant by taking undue advantage of the illness of the 7th respondent obtained a sale deed in her favour in respect of area of 1 Hectare 20 R out of the suit property. It was contended by the 1st to 6th respondents that on the basis of the said sale deed, the appellant started obstructing their possession and was trying to illegally dispossess them. Therefore, a suit for declaration and injunction was filed by the 1st to 6th respondents. 3. The appellant filed written statements at Exhibit 47 and 79. According to the appellant, the 7th respondent became the owner of the suit property after the demise of Allabax. The contention of the appellant is that after inquiry regarding heirship, a : 3 : mutation entry was made by which the name of only 7th respondent (son of Allabax) was entered into revenue records. According to the case of the appellant, the 7th respondent had authority to sell the suit land to her and accordingly the appellant has been placed in possession of the area of 1 Hector and 20 R. 4. The Trial Court held that the appellant has failed to establish that the 7th respondent was the only owner of the suit property. The Trial Court held that though the 7th respondent executed a sale deed in favour of the appellant, it is not established that the appellant was placed in possession. The Trial Court held that merely because the name of the 7th respondent appeared in revenue record, he cannot become exclusive owner of the suit property which was held by deceased Allabax and even the 1st to 6th respondents are the co-owners. The Trial Court held that the 7th respondent was entitled to execute sale deed only in respect of his share in favour of the appellant. The Trial Court after holding that the appellant was not placed in possession, passed a decree for perpetual injunction. The Appellate Court has confirmed the said decree in an Appeal preferred by the present appellant. : 4 : 5. The Second Appeal was admitted by this Court on 30th November, 1989 by holding that the same was admitted on substantial question of law in ground No.5 of the Memorandum of Appeal. Ground No.5 reads thus:- "5. The Court below has totally failed to consider that the Appellant-Defendant No.1 has purchased only 1 H 20 R of land. If the equities are worked out, Allabux would definitely get 1 H 20 R of land. It is submitted that therefore no injunction should have been granted in favour of the Plaintiffs." 6. The submission of the Counsel for the appellant is that the 7th respondent was entitled to area of 1 Hector and 20 R in the property held by Allabax. It is submitted that the sale deed recites that the appellant was placed in possession of the said area. He submitted that area of the suit property is 3 Hectare and 81 R and therefore there could not have been injunction in respect of area of 1 Hectare and 20 R purchased by the appellant, as the said area represented the share of the 7th respondent. He, therefore, submitted that the decree passed by the : 5 : Trial Court was illegal. 7. I have carefully considered the submissions. I have also perused the impugned Judgments. After adverting to the findings recorded by the Trial Court in paragraph No.9 of the Judgment, the learned Additional District Judge has noted that only point canvassed by the appellant was that the legal representatives of Allabax were holding the suit property as tenants in common and were having specific shares. A submission was made before the Appellate Court that appellant being the purchaser from one of the legal representatives of Allabax who was holding a specific share became co-owner with the 1st to 6th respondents and therefore order of injunction could not have been passed against the appellant. In the same paragraph, the Appellate Court has held thus:- ".................. He can also claim partition, in that suit, if it is necessary. But however till he gets possession from Court he should not obstruct to the possession of the Plaintiffs. There is therefore no substance in the Appeal." : 6 : 8. What is held by the Appellate Court is that the appellant has already file a suit for possession against the respondent Nos.1 to 6 herein. Therefore, the appellant cannot claim to be in possession of the area of 1 Hectare and 20 R. Therefore, the Appellate Court observed that till the appellant gets possession of the property, the appellant cannot obstruct the possession of the original plaintiffs. The Appellate Court has also observed that in the suit filed by the appellant, she can also claim a relief of partition. 9. In the Memorandum of Second Appeal the fact that appellant has filed a suit for possession has not been challenged. In view of what is observed by the Appellate Court which is referred to above, it is obvious that there is no merit in the Appeal. The Appeal is accordingly dismissed with no order as to costs. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]