1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 728 OF 2006 APPEAL FROM ORDER NO. 728 OF 2006 APPEAL FROM ORDER NO. 728 OF 2006 1. Smt. Sarubai Damaji Khandve ) Aged: 75 years, Occu: Housewife, ) R/o. Khandve Nagar, Nagar Road, ) Lohgaon, Pune - 411 017. ) 2. Smt. Barkabai Babanrao Deshmukh, ) Aged: 70 years, Occu: Houseife, ) R/o. Charoli (Bk), Taluka Haveli, ) District Pune. ) 3. Mrs. Yashoda Nivrutti Bhosale ) Aged 62 years, Occu: Housewife, ) R/o. Bhimashankar, Survey No.28 ) Samarth Colony, Near Jagtap Lady, ) Pimplenilakh, Pune 411 027. ) All through power of Attorney, ) Shri Nivrutti Shankarrao Bhosale, ) Aged: 67 years, Occu: Retired, ) R/o. Bhimashankar, Survey No.28, ) 2 Samarth Colony, Near Jagtap Lady, ) Pimplenilakh, PUne 411 027. )..APPELLANTS (Orig. Plaintiffs) Versus 1. Baban Maruti Khese ) Aged: 67 years, Occu: Agriculturst ) 2. Subhash Ramchandra Khese ) Aged: 55 years, Occu: Agiculturist ) 3. Prakash Ramchandra Khese ) Aged: 52 years, Occu: Agriculturist) 4. Mrs. Aruna Dattatraya Khandve, ) Aged 55 years, Occu: Houseife. ) 5. Mrs. Sushila Shankar Tingre, ) Aged: 42 years, Occu: Housewife. ) R/o. Dhanori, Taluka Haveli, ) District Pune. ) 6. Balu Gabaji Khandve, ) Aged: 47 years, Occu: Agriculturist) 7. Shrikant Gabaji Khandve, ) Aged 45 years, Occu: Agriculturst ) 8. Baliram Gabaji Khandve, ) Aged 43 years, Occu: Agriculturst, ) 3 Nos. 6, 7 & 8 deleted vide Court’s Order dated 27.4.07 in C.A.978/06. 9. Smt. Babytai @ Anjana Dattatraya ) Jhambulkar, Aged: 49 years, ) Occu: Housewife, ) R/o. At Post Khandala (Borghat), ) Taluka Maval, District Pune. ) 10. Mrs. Lata Dilip Maral, ) Aged: 39 years, Occu: Housewife, ) R/o. Kondava (Bk), Taluka Haveli, ) District Pune. ) No.10 deleted vide Court’s Order dated 27.4.07 in C.A.978/06. 11. Shri Anil Baban Khese, ) Aged 45 years, occu: Agriculturst. ) 12. Shri Ajay Anil Khese, ) aged 23 years, Occu: Agriculturst. ) 13. Shri Vijay Anil Khese ) Aged: 18 years, Occu: Agriculturst ) 4 14. Shri Sunil Baban Khese ) Aged: 42 years, Occu: Agriculturst ) 15. Shri Sandeep Subhash Khese, ) Aged: 26 years, Occu: Agriculturst ) 16. Shri Swapnil Sunil Khese ) Aged 19 years, Occu: Agriculturist ) 17. Shri Abhijeet Prakash Khese, ) Aged 23 years, Occu: Agriculturst. ) 18. Shri Aniruddha Prakash Khese, ) Aged 21 years, Occu: Agriculturist ) 19. Shri Shyam Subhash Khese, ) Aged : 19 years, Occu: Agriculturist) 20. Sakubai Ramchandra Khese, ) Aged: Adult, Occu: Housewife. ) No.20 deleted vide Court’s order dated 27.4.07 in C.A. 978/06. 21. Indubai Baban Khese, ) Aged: 70 years, Occu: Housewife. ) Opponent Nos. 1 to 4, 6 to 8 and ) 11 to 21 residing at Lohgaon, ) Taluka Haveli, District Pune. ) 5 22. Gayatri Co-op. Housing Society Ltd.) Through Chairman ) Ravansiddhya Gurubasya Vastrad ) Aged: 65 years, Occu: Business. ) R/o. 1, Agnaghar Co-op. Hsg.Society) Survey 46/5, Nagar Road, Pune 14. ) Through Secretary ) Mr. T.P. Alexander, ) Aged: 61 years, Occu: Business. ) R/o. Survey 51, Bhairavnagar, ) Dhanori, Pune - 15. ) No.22 deleted vide Court’s order dated 27.4.07 in C.A.978/06. 23. M/s. Rohan Projects, ) Through Partner, ) Mr. Bharat Suvalal Desarda, ) PradeepChambers, 813, ) Bhandarkar Institute Road, Pune-4. ).. Respondents (Org. Defendants) Mr. N.V.Walawalkar, Senior Counsel,a/w Mr. Tapkin Advocate for the appellants. Mr. S.U.Kamdar, Advocate a/w Mr. Vineet Naik for 6 Resopndent No.23. Mr. Virag Tulzapurkar, i/b. Mr. Vineet Naik, Advocate for Respondent NO.22. appellant. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE : 28th March, 2008. DATE : 28th March, 2008. DATE : 28th March, 2008. JUDGMENT JUDGMENT JUDGMENT 1. The original plaintiffs have preferred this Appeal against rejection of their Application Exhibit 5 for temporary injunction. 2. To state in brief, one Maruti Genu Khese had two sons, namely Ramchandra and defendant No.1 Baban and four daughters. Plaintiff Nos. 1, 2 and 3 are the daughters of Maruti, while the 4th daughter Sunderabai is no more alive. Defendant Nos. 6 to 10 are L.Rs of Sunderabai. Ramchandra is also no more alive. Defendant No.1 Baban is the brother of the plaintiffs. Some of the defendants are the wife and children of defendant No.1 Baban and some of the defendants are the legal heirs of deceased Ramchandra and Sunderabai. The relationship between the plaintiffs and the defendant 7 Nos. 1 to 21 is not in dispute. The property in dispute is Survey No.229, divided into 17 parts. The total area of Survey No.229 is 8 hectares and 98 Ares. Besides that, there are lands Survey No.65, 65/1/2, 67/1 and 284/1A. The total of these four lands is 11 hectares and 63.5 Ares. All these lands are situated at Village Lohgaon, Taluka Haveli, District Pune. Admittedly, this land come to the family of Maruti as tenancy land. Maruti Genu Khese had purchased the land by paying the price under the provisions of Section 64 of the Bombay Tenancy and Agricultural Lands Act, 1948, as applicable to the Western Maharashtra (hereinafter referred to as "the Tenancy Act"). Maruti died on 13.7.1964 leaving behind his wife Janabai, two sons and four daughters as his legal heirs. After his death, the property was in possession of his two sons and the widow. The sons, being the male members of the joint family, ere looking after the property. In 1965, the lands were mutated under mutation entry No.4465 in the names of his sons Ramchandra and Baban and widow Janabai and in 1977 another mutation entry No.6031 was taken showing the shares of these two sons and widow separately in the said property. Defendant No.22 is a Society of about 140 ex-servicemen. The Society purchased the land survey No.229 under 22 different sale deeds from Ramchandra and Baban for valuable 8 consideration. In 2006,defendant No.22 entered into an agreement with defendant No.23 for development and construction on the said land. At that stage, the plaintiffs claim to have come across a public notice in newspaper that defendant No.23 was going to make development and construction on the land survey No.229. According to the plaintiffs, as the land survey Nos.229, 65, 67 and 284 was purchased by their father Maruti by paying price under the Tenancy Act, it as his self-acquired property and after his death, in the year 1964, they were entitled to equal shares along with their brothers and mother. Their mother also died after 1990. In view of this, only two brothers and four sisters would have equal shares in the said property. According to the plaintiffs, their brothers had alienated the land survey No.229 in favour of defendant No.22 under 22 different sale deeds without any consent from the plaintiffs and, therefore, the sale deeds are not valid and binding on them. Therefore, the plaintiffs filed Special Civil Suit No.835 of 2006 in the Court of Civil Judge, Senior Division, Pune, seeking to set aside the sale deeds in favour of defendant No.22 in respect of land survey No.229 and for declaration that the sale deeds are not binding on the plaintiffs. They also claimed partition and separate possession to the extent of half share in the total suit land. They 9 also sought the declaration that the partition deed dated 11.4.2001 executed by defendants Nos. 1 to 3 is illegal and not binding on the plaintiffs. They also sought declaration that the development agreement entered into by defendants Nos.22 and 23 in respect of land survey No.229 is not binding on them. By Application Exhibit 5, they sought temporary injunction restraining the defendants from carrying on any development and from creating any third party interest over the suit land. 3. Defendant Nos. 6 to 10, who are the L.Rs. of deceased Sunderabai,the sister of the plaintiffs, are not contesting parties because they may be the beneficiaries of the result of the suit. The remaining defendants have contested the suit as well as the Application Exhibit 5. According to the defendants Nos. 1 to 5 and 11 to 21, this property was not the self-acquired property of Maruti. The property was in possession of his family even during the lifetime of Genu, father of Maruti, or even prior to that and, as such, when the Tenancy Act came into force, this property was in possession of the family as joint family property. Maruti Genu made payment of price of the land and he being the head of the family, the said certificate was issued in his name. Therefore, this 10 property could not be treated as self-acquired property of Maruti, but was the joint family property of the co-parcener. It was further contended that after death of Maruti in 1964, the mutation entry was taken in favour of his two sons Ramchandra and Baban and widow Janabai. Thus, all the four daughters were excluded from the property. Again in 1975, mutation entry No.6031 was taken and the land was equally divided between Ramchandra and Baban without showing the share of any of the four sisters or even mother. It is a common defence of all the contesting defendants that before purchase of the land survey No.229 by defendant No.22, public notices were issued in the newspaper in the year 1986. No objection was received and therefore they proceeded ahead to complete the contract and they purchased land survey No.229 under 22 registered sale deeds of different dates and they were also put in possession of that land. Defendant No.22 is in possession of the land since the date of purchase of the said land. The members of Defendant No.22 Society are the ex-servicemen and they have decided to construct houses for themselves and for this purpose, they have entered into a contract of development and construction with defendant No.23, who is a developer. Before the contract between the defendant Nos. 22 and 23 was completed, a public notice was issued in the year 2006. 11 It is contended by the contesting defendants that firstly, the plaintiffs have no right,interest or share in the property and secondly even if they had any right or share in the suit property, the suit is barred by limitation as they have been excluded from the property in 1965 and then in 1975. They had never taken any objection to the said mutation entries nor they had raised any objection when the land survey No.229 was sold by Ramchandra and Baban to the defendant No.22 inspite of public notice. According to defendant Nos. 22 and 23, even if the plaintiffs have sold any share in the joint family property, the remaining property in the hands of defendants Nos. 1 to 5 and 11 to 21 is sufficient to satisfy the claim of the plaintiffs. It is contended that if, at this stage, any temporary injunction is granted, it will cause great hardship and inconvenience, particularly to the members of the Defendant No.22 Society. Therefore, the balance of convenience is in favour of the defendants and the application is liable to be rejected. 4. After hearing the parties and perusing the record, the learned trial Court rejected the Application Exhibit 5. According to the learned trial Court, the plaintiffs have suppressed material information and have not come with clean hands before this Court. The remedy 12 of partition and separate possession is barred by limitation. Even if they had any share, it was hardly 10.73% in the total property because it was not the self-acquired property of Maruti, but was a joint family property. According to the learned trial Court, even if the plaintiffs succeed, their share can be carved out from the remaining property which is in the hands of the legal heirs of Maruti. The learned trial Court noted that the plaintiffs had not come to the Court within reasonable time after sale of the property in favour of the defendants. The delay on their part is unexplained and now the balance of convenience is in favour of the defendants Nos. 22 and 23 and not in favour of the plaintiffs. 5. Heard learned Counsel for the parties and perused the relevant documents. 6. In view of the material on record, it is admitted that land survey No.229 is only 8 hectors and 98 Ares out of which 8 H.98 Ares has been sold away by Ramchandra and Baban in favour of defendant No.22. Janabai, mother of the plaintiffs, was also a party to the said sale deed. The legal heirs of Maruti are still in possession of Survey No.65/1/2, 65/1, 67/1 and Survey No.284/1A. The total of this area is 11 hectares 63 13 Ares which is more than the property sold away to the defendant No.22. It appears that even though Maruti became owner of the property on payment of price under the tenancy law, the property was in possession of his family even during the lifetime of his father Genu, and that too, even before the Tenancy Act came into force. In view of this, prima facie, it appears that Genu and his son Maruti were jointly cultivating land and after his death, Maruti and his sons were also cultivating the land jointly. As such, the land was being cultivated as joint family property though as tenants and not as owners. It is not necessary to decide at this stage whether it will amount to self-acquired property of Maruti or joint family property after the price was paid. 7. From the facts noted above, it is clear that the first mutation entry was effected in 1965 and the property was recorded in the names of two sons and widow of Maruti and in 1975, when mutation entry No.6031 was taken, only Baban and Ramchandra two sons of Maruti were shown to have 50% share each in that land. It is contended by the defendants that at least in 1975, there was a clear declaration by two sons of Maruti that they had excluded their sisters from this property. However, the learned Counsel for the plaintiffs-appellants 14 contended that mutation entries were not within the knowledge of the plaintiffs. They were co-owners. The possession of their brothers over the property would be possession as co-owners and the plaintiffs were also supposed to be in possession of the property as co-owners through their brothers. As such, they cannot be said to have been excluded from the property. Even if the contention of the learned Counsel for the plaintiffs in this respect is accepted to be correct, the situation in respect of land survey No.229 is slightly different. Admittedly, out of survey No.229, 8 hectares and 18 Ares land was sold away by Janabai and her two sons in favour of Defendant No.22 Society under 22 different sale deeds during 1986-87. There is a record to show that before purchase of the land, defendant No.22 had issued public notice calling objections, but no objection was raised and after that it purchased the property under registered sale deed. 8. The learned Counsel for the defendant Nos. 22 and 23 vehemently contended that defendant NO.22 is a bonafide purchaser for consideration without any knowledge of the right, interest or title of the plaintiffs over the suit property. Even if they had any share in the property, since 1964 onwards, Janabai, Baban and Ramchandra were the only ostensible owners of 15 the property. In the Records of Rights, names of only three owners could be seen from 1965. In 1975 only the names of Ramchandra and Baban were shown as owners. Inspite of this, they had taken due care to issue public notice calling objections, if any and when inspite of publication of the notice no objection was raised by anybody, they had reason to believe that Janabai and her two sons were the only persons entitled to this property. From the year 1986-87, when defendant No.22 purchased land Survey No.229 and took possession of the same, the said land is openly and continuously in possession of the defendant No.22 as owners and without any objection from anybody. It is also pointed out by the learned Counsel for defendant Nos. 22 and 23 that in the year 1996, defendant No.22 had learnt that some third party was trying to enter into transaction for the land Survey No.229 and therefore, the defendant No.22 had issued a public notice about its title over this land and warning the public against any such transaction. At that time also no objection was raised by the plaintiffs. It is contended that at least since the year 1986-87, the plaintiffs were finally excluded from the land Survey No.229. It is contended that the suit filed by the plaintiffs against the defendant No.22 is barred by limitation which would be 12 years from the date of purchase of the property in view of Article 110 16 of Schedule I of the Limitation Act, 1963. It may be noted here that the question of limitation has to be finally decided only at the time of trial of the suit. Article 110 provides that a person excluded from joint family property may file a suit to enforce right to share therein within 12 years and the period of limitation begins when the exclusion becomes known to the plaintiff. The plaintiffs have also sought to set aside the alienation of the said property. For this purpose, the case falls under Article 109 under which suit may be filed within 12 years and the period of limitation begins to run when the alienee takes possession of the property. In the present case, defendant No.22 purchased and took possession of 8 Hectares and 17 Ares out of Survey No.229 in the year 1986-87 under the said sale deeds after publication. Therefore, prima facie, it appears that the suit of the plaintiffs is barred under Article 109 as well as Article 110. It is material to note that plaintiff No.1 is the resident of Village Lohgaon where the property is situated and plaintiff no.2 is the resident of Charoli, Taluka Haveli, and plaintiff No.3 is residing at Pune. Thus, plaintiff Nos. 2 and 3 are also residing at a distance of few kilometres from Lohgaon. Prima facie, it is difficult to accept the contention of the plaintiffs that they were not aware about sale of the 17 land Survey No.229 to defendant No.22 or about taking of possession of the said land by defendant No.22. 9. As far as the remaining land which is in the hands of defendant No.1 and L.Rs. of the deceased Ramchandra, possibly Articles 109 and 110 of the Limitation Act may not be applicable because that property is still held by the family. To protect the interest of the plaintiffs, the defendant No.1 Baban and his family members as well as the L.Rs. of Ramchandra may be restrained from creating any third party interest in the property in their hands. 10. The learned Counsel for the plaintiffs-appellants vehemently contended that the observations of the learned trial Court against the plaintiffs are unwarranted and incorrect. Even if it may not be correct to say that suit is vexatious, that whole of the suit is barred by limitation or that the plaintiffs have not come with clean hands, still fact remains that the plaintiffs were keeping silent since the time of death of their father and particularly from 7.10.1965 when the mutation entries were taken excluding them from the property and further they kept silent for a period of about 18 to 20 years after the land from Survey No.229 was purchased by the defendant No.22. This conduct of 18 the plaintiffs and the latches on their part certainly need to be considered to find out whether balance of convenience is in their favour. Taking into consideration the record in its totality, prima facie, it appears that the plaintiffs had share in the suit property. However, if it is found to be ancestral and joint family property, their share must be less than 1/3rd and if it is found self-acquired of their father Maruti, their share may not be more than half. As the whole of the property is situated at Lohgaon at short distance from each other and as the property has got potentiality of development as non-agricultural land for the purpose of construction, taking into consideration the vicinity of the land, value of land purchased by defendant no.22 and the value of the land in possession of the defendant no.1 Baban and other defendants could not be different. 60% of the family property is still in the hands of Baban and other contesting defendants. Even if the plaintiffs succeed in getting a decree for partition and separate possession, their share can be satisfied out of the property in the hands of Baban and other contesting defendants. Defendant No.22 is a Society of 140 ex-servicemen who must have purchased this property by hard-earned money and now they want to settle in their own houses and for this purpose they have entered into a contract with defendant no.23 for 19 development and construction on the land Survey No.229. If at this stage, at the instance of the plaintiffs, the construction and development is stopped, it may cause great hardship and irreparable loss to the members of the defendant no.22 Society. No such hardship or irreparable loss is likely to be caused to the plaintiffs if the temporary injunction is refused. In such matters, while balancing the equities, the conduct of the parties has to be seen. Taking into consideration the laches, delays and the conduct of the plaintiffs in keeping silent for a long period of about 18 years after sale. I find that they are not entitled to relief against defendant Nos. 22 and 23. 11. The learned Counsel for the plaintiffs-appellants relied upon Krishna Pillai Krishna Pillai Krishna Pillai Rajasekharan Nair (Dead) by L.Rs. vs. Padmanabha Rajasekharan Nair (Dead) by L.Rs. vs. Padmanabha Rajasekharan Nair (Dead) by L.Rs. vs. Padmanabha Pillai (Dead) by LRs. and Ors. (2004) 12 SCC 754 Pillai (Dead) by LRs. and Ors. (2004) 12 SCC 754 Pillai (Dead) by LRs. and Ors. (2004) 12 SCC 754, wherein Their Lordships held that in a suit for partition, starting point of limitation is when the plaintiff receives notice of denial of his right to partition. Taking into consideration the circumstances noted in this case, the plaintiffs may be protected from the bar of limitation in respect of the properties which are still in the hands of defendant No.1 Baban and other members of the family. But as far as the property 20 purchased by defendant No.22 is concerned, this authority may not help the plaintiffs because in view of the circumstances noted above, they had the knowledge that they were excluded at least in respect of the property sold to defendant No.22. 12. The learned Counsel for the plaintiffs contended that the purpose of temporary injunction is to protect the property or to protect the interest of the plaintiffs pending the suit and in support of this contention, he relied upon Wander Ltd. and Another vs. Wander Ltd. and Another vs. Wander Ltd. and Another vs. Antox India P. Ltd. 1990 (Supp) SCC 727 Antox India P. Ltd. 1990 (Supp) SCC 727 Antox India P. Ltd. 1990 (Supp) SCC 727 wherein Their Lordships observed as follows :- "9. Usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injunction, it is stated 21 "...is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty ere