1 WP-5522-11.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5522 OF 2011 Smt.Pratibha Gulab Patil ..Petitioner Vs Smt. Babutai Deelip Patil and ors. ..Respondents ­­ Mr.K.S.Patil i/b.Mr.R.H.Patil, for petitioner. ­­ CORAM : R.G.KETKAR, J. DATE : 13 th SEPTEMBER, 2011 P.C. The original plaintiff has challenged the judgments and order both dated 8 th March, 2010 below exhibits 6 and 34 in R.C.S. No.354 of 2009 passed by the learned Joint Civil Judge, Junior Division, Islampur as also judgment and order dated 20 th May, 2011 passed by the learned District Judge­1 in Misc. Appeal No.9 of 2010 whereby, 2 WP-5522-11.odt the plaintiff’s application for interim order at exhibit 6 was rejected and the application at exhibit 34 made by the defendant nos.1 to 6 for appointment of Court Commissioner was allowed. 2] Heard Mr.K.S.Patil, learned counsel for the petitioner. He invited my attention to the earlier round of litigation wherein, partition suit was instituted by Bhimrao and his brother being Regular Civil Suit No.304 of 1982. In that suit, the parties arrived at compromise on 11 th March, 2005. One of the brothers of Bhimrao by name, Anandrao, filed Regular Civil Suit No.296 of 2005 challenging the consent decree passed in the earlier suit. By an interim order dated 10 th January, 2006, the execution of the compromise decree dated 11 th March, 2005 in Regular Civil Suit No.304 of 1982 was stayed. By that order, the application of plaintiff no.4 in the suit – Ranjana 3 WP-5522-11.odt (respondent no.3 herein – defendant no.3) was also rejected. Mr.Patil submitted that the defendants nos.1 to 6 being daughters of Bhimrao have no interest in the suit property. All the daughters got married much prior to 1994. He, therefore, submitted that the Courts below committed an error by refusing to issue injunction. He further submitted that the petitioner is in possession and is cultivating the suit property and therefore, the Courts below committed serious error in allowing the application at exhibit 34 made by the defendant nos.1 to 6. 3] I have considered the submissions of Mr.Patil. After going through the material on record and after hearing learned counsel for the petitioner, I do not find that the Courts below have committed any error in passing the impugned orders. It is not disputed that the 4 WP-5522-11.odt plaintiff is the daughter­in­law of Bhimrao. Said Bhimrao died on 1 st January, 1989 and the plaintiff’s husband Gulab died on 6 th April, 1999. There is no dispute about the relationship between the parties. The Courts below came to the conclusion that the defendants, being daughters of Bhimrao, have right to inherit the suit property along with their brother Gulab who has died. Though, the name of the plaintiff is entered in the revenue record, she cannot become exclusive owner of the suit property. The Courts below rejected the application for injunction on the ground that the defendants are also co­owners and consequently, one owner cannot claim injunction against other co­owners. I therefore do not find that the Courts below have committed any error while rejecting the application exhibit 6. 4] As far as the order below exhibit 34 is concerned, the learned 5 WP-5522-11.odt trial Judge has directed that the sale proceeds of the sugarcane crop received from the sugar factory be deposited in the Court. The trial Court also recorded that the defendants have not claimed any amount from the sale proceeds of the sugarcane crop. Mr.Patil submitted that the plaintiff has cultivated sugarcane crop and has incurred expenditure towards the cultivation. Though I find that no error is committed by the Courts below in passing the order below exhibit 34, it would be open for the plaintiff to apply for withdrawal of the amount subject to giving account. If such application is made, the Court may consider the same in accordance with law after hearing both sides. Subject to above clarification, I do not find any merit in this petition. The petition is dismissed. [R.G.KETKAR, J.]