1 AO 153 OF 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD APPEAL FROM ORDER NO. 153 OF 2010 (1) Smt. Vimal Babasaheb Ghogare, Aged 56 years, Occupation Housewife and Agriculture, Appellants (2) Manohar Babasaheb Ghogare, Aged 28 years, Occupation Service and Agriculture, (3) Bhausaheb Balasaheb Ghogare, Aged 25 years, Occupation Agriculture, All residents of Loni Khurd, Taluka Rahata, District Ahmednagar. V E R S U S (1) Waman Chimanrao Ghogare, Aged 41 years, Occupation Agriculture and Contractor, Resident of Zarekathi, Taluka Sangamner, District Ahmednagar. Respondents (2) Dattatraya Chandrabhan Ghogare, Aged 46 years, Occupation Agriculture and Contractor, resident of Loni Khurd, Taluka Rahata, District Ahmednagar. Mr. A.Z. Gandhi, Advocate for the appellants Mr. R.N. Dhorde, Advocate, holding for Mr. V.R. Dhorde, Advocate for the respondents CORAM : A.V. NIRGUDE, J. DATED : 23rd February, 2011 2 AO 153 OF 2010 ORAL JUDGMENT : 1. The original plaintiffs have filed this appeal against the interim order passed by the learned Civil Judge, Senior Division, Kopargaon, in Special Civil Suit No. 58 of 2009 on 11th August, 2010. The case of the appellants / plaintiffs was as under : 2. Land Gut No. 159 of village Loni Khurd, Taluka Rahata, District Ahmednagar is ancestral property of the appellants and the respondent No.1. The respondent No. 1 is brother-in-law of the appellant No. 1 and uncle of appellants No. 2 and 3. It is said that the respondent No. 2 is a vagabond who never married or did anything to the joint family property. They said that they alone cultivated the entire land which remained undivided and in their exclusive possession. They said that the respondent No. 1 comes to the village of and on. They said that some time in 2008, he had come to the village and had promised to them that if at all he would propose to sell his undivided share in the suit land, he would prefer them over others. However, to the surprise of the appellants, they learnt that the respondent No. 1 had sold his undivided share to the respondent No. 2 on 4th February, 2009. The appellants therefore rushed to the Court with a plea that they had right of preemption to purchase the undivided share of the respondent No.1 and sought declaration that the sale deed executed by the respondent No. 1 in favour of the respondent No. 2 should be declared null and further directions against the respondent No.1 that he should sale the property to them. 3. They also filed an application for temporary injunction to prevent entry of the respondent 2 in the undivided suit land survey No. 159 and to prevent him from dealing with the property further. The 3 AO 153 OF 2010 respondents opposed this application on the plea that the late husband of the appellant No. 1 Babasaheb, who was the brother of the respondent No. 1, had divided the suit property amongst themselves way back in 1986, and since then, the suit land stood in two parts. They further suggested that it was Babasaheb who had right of preemption to purchase the undivided share from respondent No.1, and, since Babasaheb is no more, the appellants cannot claim such right. 4. In addition to this, they further stated that in 2005 the appellants themselves mortgaged their half portion of the suit land to a Co-Operative Bank for raising a loan. They brought on record a certified copy of the mortgage-deed. The learned Judge, in view of the defence, prima facie disbelieved the case of the appellants that the entire undivided suit land is in their possession. 5. There are two questions before this Court ; (1) Whether prima facie the suit land is still undivided and still in exclusive possession of the appellants? (2) Whether the appellants prima facie prove that they have right of preemption as against the respondent No.1? 6. The appellants' case stood destroyed when they admittedly mortgaged half portion of the suit land to the bank in 2005. While doing so, they described their portion of the suit land. They clearly stated that their half share of the suit land lied on the western side and the half portion of the suit land belonging to the respondent No.2 lied on the eastern side. In view of this clear stand taken by the appellants, they are now estopped from pleading that the land is still undivided and they are in possession of the same. The 7/12 extract 4 AO 153 OF 2010 of the suit land does show that it still stood undivided in the hands of the appellants and the respondent No.1, but the 7/12 extract also contains the entry in respect of the mortgage-deed. In view of this, the appellants are not able to prevent the respondent No.1 from using his portion of the suit land either for cultivation or for any other purpose. Even though it is indicated on record that the respondent No. 1 was not very keen to cultivate his portion of the suit land and probably neglecting it, still the appellants by their own admission cannot enter the respondent No.1's portion of the suit land. If the respondent No.1 inducts respondent No.2 in his portion of the suit land, the appellants could not have any objection to such an act. 7. The second point is required to be decided on the basis of the provisions of Section 22 of the Hindu Succession Act, 1956, which reads as under : 22. Preferential right to acquire property in certain cases. - (1) Where, after the commencement of this Act, interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolve upon two or more heirs specified in class 1 of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred. (2) The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the Court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incident to the application. (3) If there are two or more heirs specified in class 1 of the Schedule proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred. Explanation.- In this section, ‘court" means the court within the limits of whose jurisdiction the immovable property is situate or 5 AO 153 OF 2010 the business is carried on, and includes any other court which the State Government may, by notification in the Official Gazette, specify in this behalf. In view of sub-section (1) of Section 22, the appellants do not possess the preferential right to acquire the respondent No.1's property, even if it is assumed that the suit land is still a joint family property. The appeal should therefore fail. The Appeal From Order stands dismissed. In view of disposal of Appeal From Order, Civil Application No. 16614 of 2010 stands disposed of. The observations made above, shall not influence the learned Judge of the trial Court while deciding the suit finally. ( A.V. NIRGUDE, J. ) SRM/ao/153/10/23/2/11/ok