1 CAW-2432.11.sxw lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.2432 OF 2011 IN WRIT PETITION NO. 4585 OF 2011 Shri Gulab Vitthal Parkhe and ors. : Applicants. Versus Shri Bhagwan Rambhau Sonawane and ors. : Respondents. Mr. S A Sawant for the Applicants. Mr. Satyajeet Dighe i/by Mr. Makarand Panchakshari for the Respondents. CORAM : R M SAVANT, J. DATE : 09th December 2011 P.C. 1 The above Civil Application has been filed by the Applicants, who are Respondents to the above Petition seeking a relief that the Petitioners to the original Petition i.e. the Respondents herein should not interfere with their possession in respect of Gat No.113/1 and Gat No.113/2 at village Nimgaon Tarphe, Tal.Junnar, Dist. Pune, i.e the suit lands mentioned in Regular Civil Suit No.164 of 2007 pending before the Civil Judge, Junior Division, Junnar. 2 It is the case of the Applicants that the original Petitioners i.e. the Respondents herein are seeking to interfere with the possession of the Applicants on the basis of the interim order dated 1/8/2011 passed in the above Petition by which order the above Petition came to be admitted and the interim relief in terms of prayer clause (c) came to be granted. The observation made by a learned Single Judge of this Court in the said order 2 CAW-2432.11.sxw dated 1/8/2011 is to the following effect :- “If the property was a joint family and is owned by the co-parceners, there cannot be any injunction restraining the co-parceners from joint possession of the property.” 3 It is required to be noted that the Applicants are the original Plaintiffs in Regular Civil Suit No.164 of 2007 which has been filed by them for permanent injunction against the Petitioners in the above Petition. In the said suit, the Applicants had filed an application for temporary injunction which came to be allowed by the trial Court i.e. the learned Civil Judge, Junior Division, Junnar by an order dated 22/11/2007. In so far as the said order is concerned, the learned Judge has specifically recorded a finding based on the revenue record that the Applicants are in possession of the Gat Nos.113/1 and 113/2, the area is 0.50 H.R. And 0.40 H.R. respectively. By the said order the temporary injunction came to be granted in favour of the Plaintiffs, and the Petitioners/Defendants were restrained from interfering with the possession of the Applicants who are the Plaintiffs over the suit lands bearing Gat Nos. 113/1 and 113/2. 4 Against the said order dated 22/11/2007, the matter was carried in Appeal by the original Petitioners/Defendants by filing Misc. Civil Appeal No.418 of 2007. The said Appeal came to be dismissed and the order passed by the trial Court dated 22/11/2007 granting injunction in favour of the Applicants/Plaintiffs came to be confirmed. 3 CAW-2432.11.sxw 5 Aggrieved by the said both the orders i.e. order dated 22/11/2007 passed by the trial Court and the order dated 7/2/2011 passed by the First Appellate Court, the Petitioners/Defendants have filed the above Petition in this Court. 6 As indicated above, the above Petition has been admitted and interim relief in terms prayer clause (c) has been granted. 7 Though this Court in the order dated 1/8/2011 has observed that the co-parceners can be in joint possession of the property, in the instant case it is to be borne in mind that the possession of the Applicants has been endorsed by both the Courts below. The possession of the said Gat Nos.113/ and 113/2 of the Applicants is on the basis of the registered sale deeds which were executed on 10/5/1999 and 10/12/1999 respectively. The vendors of the Applicants were the purchasers from one of the branches of the family which owns the lands in question. The alienation in favour of the vendor of the Applicants was not challenged at any time. 8 The learned counsel for the original Petitioners states that the Petitioners have filed a separate suit challenging the legality of the said sale deeds. However, as on date, since the possession of the Applicants has been recorded by both the Courts below, the Original Petitioners i.e. the 4 CAW-2432.11.sxw Respondents herein cannot on the basis of the interim order disturb the possession of the Applicants. The possession of the Applicants can therefore be disturbed after the sale deeds in question are set aside or the due process of law is followed. It is not a case where the Applicants were seeking possession of the property for the first time, but is a case where they are already in possession since a long time. However, as on date, the possession of the Applicants is required to be protected in view of the findings recorded by both the Courts below. 9 In that view of the matter, the above Civil Application would have to be allowed and is accordingly allowed and made absolute in terms of prayer clause (a). The interim order dated 1/8/2011 passed in the above Petition would therefore stand modified to the aforesaid extent. The above Civil Application is accordingly disposed of. [R.M.SAVANT, J]