1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1008 OF 2009 IN SECOND APPEAL NO.279 OF 2008 Deepak Jagannath Girme .... Applicant Pune (Resp.no.11 in SA) Vs. Arjun Haribhau Ubhe & Ors. .... Respondents Mr.G.S.Godbole i/by Mr.P.M. Arjunwadkar Advocate for applicant. Mr.A.Y. Sakhare, Sr.Counsel with Mr.Y.Sakhare, Advocate for respondent no.1. Mr.Amol Gatne h/f Mr.S.B.Deshmukh, Advocate for respondent no.2 CORAM : Smt. R.P. SondurBaldota, J. Date : 18th July, 2009 P.C. : 1. The applicant to the civil application is original respondent no.11 to the appeal. Respondents no.1 to 7 are the original appellants and the remaining respondents are the original respondents to the appeal. The present appeal originally filed was only against 10 respondents. Respondents no.11 and 12 though parties to the appeal before the District Court had been omitted from the cause title of the appeal. The reason apparently made out for exclusion of these two persons is that the judgment of the appeal court, erroneously omits to mention these two persons. However subsequently the applicant and respondent no.19 came to be impleaded to the appeal. At the relevant time, Civil Application No.647 of 2008 filed by 2 respondents no.1 to 7 for interim reliefs was pending. The record shows that after the appellant and respondent no.19 were impleaded to the appeal proceedings, notice of neither the appeal nor the civil application was served upon them. The appellant and respondent no.19 having learnt about pendency of the present proceedings from the other respondents to the appeal came to the court and entered their appearance on their own. In the interregnum, Civil Application no.647 of 2008 came to be allowed by the order dated 13th August 2008 in terms of prayer clause (b) thereof. The prayer reads as follows : “(b) pending the hearing and final disposal of the abovesaid Second Appeal, the respondents, their agents and servants be restrained by an order of injunction of this Honourable Court from transferring, creating third party interest or parting with possession of the agricultural land as mentioned in Schedule `A’ to the Civil Application.” 2. By the present civil application, the applicant complains that the interim order dated 13th August 2008 was an exparte order without hearing the applicant and seeks either modification or recall of the order. The other relief sought by him is that subject to final outcome of the second appeal, he be permitted to carry out development over portion of land admeasuring 3 H. and 11 R. out of gat no.1354. 3. In order to appreciate the reliefs sought by the applicant, in particular, the relief at prayer clause (b), the 3 facts of the proceedings are required to referred to. The present appeal arises out of Special Civil Suit No.515 of 1989 by respondent nos.1 to 7 for partition of joint family properties consisting of agricultural lands. The applicant is the purchaser of land admeasuring 3H. 11R, situate at gat No. 1354 which is one of the joint family properties having sold to him jointly by all the owners by virtue of sale-deed dated 27th May 1988 and 25th October 1988. The present suit was filed in the year 1989. While defending the suit for partition, the family members other than the applicant and respondent no.19 had contended that the predecessor of the respondents no.1 to 7 Haribhau had been ousted from the family as he had been residing with his maternal uncle and practically adopted by the maternal uncle. In the alternative, it was contended by them that Haribhau have always been excluded from the enjoyment of the joint family property. Haribhau had demanded partition of the property which was also refused to him. On his death, when respondents no.1 to 7 demanded partition, it was again refused. More than 19 years after the refusal, the instant suit came to be filed. Hence was barred by Article 110 of the Limitation Act. The trial Court and the appellate Court upheld the contention as regards the remedy of respondents no.1 to 7 being barred by Law of Limitation and dismissed the suit as well as the appeal. Both the courts below rejected the defence set up by the other family members of ouster of Haribhau from the joint family. 4 4. The present appeal filed by respondents no.1 to 7 was admitted on 13th August 2008 for consideration of following substantial questions of law. “1) Whether the Courts below were right in refusing the decree for partition to the plaintiff when the defendants have failed to prove their plea of adverse possession as well as their plea that Haribhau was adopted in different family ? 2) Whether the Courts below having come to the conclusion that the defendants had failed to prove ouster of Haribhau or the plaintiffs from the joint family,erred in holding that the suit for partition filed by the plaintiffs is barred by limitation?” 5. Mr.Godbole, learned counsel for the applicant submits firstly that the order dated 13th August 2008 on the civil application having been passed without hearing the applicant cannot be sustained against him. Secondly that there was no interim order enjoyed by respondents no.1 to 7 from 30th March 1993 to 13th August 2008 as after dismissal of the suit no interim order was granted in their favour. In that circumstance, there ought not to have been any interim order in the Second Appeal after concurrent findings against respondents no.1 to 7 and lease an exparte interim order. It has been thirdly submitted by Mr.Godbole that the applicant being bona-fide purchaser for value of portion of the suit properties, much prior to filing of the suit will be entitled to equitable right 5 even at the time of partition of the property by metes and bounds so as to retain the land sold to him. 6. There is no dispute that the applicant is in possession of the land purchased by him. At paragraph no.12 of the application, the applicant states that he has incurred huge expenses after purchase of the property by putting up a compound around, building approach ghat road to reach the site, digging the bore well and installing water pump thereon. He claims to have invested more than Rs.12,86,000/- in developing the property. The applicant wants to start a health resort on the suit property and for that purpose also desires to mortgage the property to financial institutions to raise loan for development of the property. It has been argued by Mr.Sakhare that if the applicant is allowed to change the nature of the suit property from agricultural to a health resort, respondents no.1 to 7 will be seriously prejudiced as the property will not be available to them for partition in the event they succeed in the appeal. It is patent that the order dated 13th August 2008 passed on the civil application, was without hearing the applicant. Therefore that cannot be sustained against them. In that case, Mr.Sakhare submits that his client should be protected in some way or the other, either by monetary compensation or by keeping portion of the land available for partition. Mr.Godbole on instructions from the applicant states 6 that the applicant is willing to keep 1/3rd portion of the land at gat No.1354 purchased by him vacant without any development thereon, so that in case respondents no.1 to 7 succeed in the appeal, the land can be made available to them, as their share in gat no.1354. He states that the applicant is also willing to keep this portion of land out of any mortgage transaction that the applicant may entered into 7. On the above background what is required to be first considered is whether the applicant should be allowed to develop the land purchased by him. There is concurrent finding of both the courts below that the applicant is bonafide purchaser for value of the land since much prior to filing of the suit. There is also concurrent finding of both the courts that respondents no.1 to 7 are not entitled to seek partition of the joint family property, they having been excluded from the enjoyment of the joint family property and the suit for partition having become barred by law of limitation. In the circumstances restraining the applicant from enjoying the property purchased by him in the manner he desires would cause undue hardship to him and would also be against the interest of justice. In the circumstances, I am inclined to allow the applicant to develop his property subject to protection of interest of respondents no.1 to 7. Hence, the order : 7 O R D E R The Civil Application is partly allowed in terms of prayer clause (b). The interim order dated 13th August 2008 is hereby modified to the extent at land at gat no. 1354 which has been purchased by the applicant. This order is subject to condition that the applicant shall set aside 1/3rd portion of the land at gat No.1354 outside the development as well as of creation of any mortgage. The applicant to identify 1/3rd portion of the property and communicate the same to respondents no.1 to 7 within a period of four weeks from today. (Smt.R.P. SondurBaldota,J.)