1 AO Nos.112/11 & 149/11 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.112/2011 with CA NO.8985/2011 Jyoti w/o Rajendra Kajale - APPELLANT (Orig.Deft.No.5) VERSUS 1) Ajit s/o Jagdish Maniyar and others. - RESPONDENTS (Orig.Plaintiff & Deft.Nos.1 to 4) ... Mr.RN Dhorde with Mr.VS Bedre,Advocates for Appellant/Applicant; Mr.VJ Dixit, Sr.Counsel h/for Mr.SK Shinde,Adv. for Respondent No.1; Mr.Nikhil Jaju, Adv. h/for Mr.AS Bajaj, Advocate for Respondent Nos.2 to 4. ***** with APPEAL FROM ORDER NO.149/2011 1) Jagdish s/o Shrivallab Maniyar and others. - APPELLANTS VERSUS 1) Ajit s/o Jagdish Maniyar and others. - RESPONDENTS Mr.Vivek V.Kulkarni, Advocate for Appellant; Mr.VJ Dixit, Sr.Counsel h/for Mr.SK Shinde,Adv. For Respondent No.1; 2 AO Nos.112/11 & 149/11 Mr.Nikhil Jaju, Adv. h/for Mr.AS Bajaj, Advocate for Respondent No.2; Mr.RN Dhorde with Mr.VS Bedre,Advocates for Respondent No.3. ----- CORAM : K.U.CHANDIWAL, J. DATE : 17th NOVEMBER, 2011. PER COURT : 1) Additional affidavit of Respondent No.1 with photo state copy of sale-deed, is tendered, taken on record, copy thereof received by Mr.Dhorde for the appellant. 2) Heard learned Counsel for the respective parties extensively and finally. 3) Grant of injunction in favour of plaintiff in Special Civil Suit No.29/2011 by order dated 30th May, 2011, is questioned by the purchased - Defendant no.5 vide AO No.112/2011. The other defendants – father, brother and sister of plaintiffs, have also preferred Appeal from Order No.149/2011, taking exception to the same order dated 30th May, 2011. 4) Since the issue involved in both the Appeals from Order is similar, they are being disposed of by this common order. 3 AO Nos.112/11 & 149/11 5) The factual matrix of the matter, in short, is : Defendant No.1 – Jagdish Shrivallabh Maniyar sold the suit property by sale-deed dated 18.2.2011 in favour of defendant no.5 – Sow. Jyoti Rajendra Kajale for a consideration of Rs. 22,00,000/-(Rupees twenty two lakhs). The sale- deed recites, possession was handed over by said Jagdish Maniyar in favour of deft.no.5. There are also recitals in the said deed about the status of the plaintiff – Ajit, to be an elder son and residing separately from the family. There is no controversy that Jagdish has two sons, viz. - Ajit, Dilip and a daughter – Smt. Aruna Lahoti. 6) The plaintiff – Ajit asserts that he has right, title and interest in the property in question. The property being joint family property, even if he is residing separately, that does not mean that he has absolved or relinquished his rights, title and interest in the property in question. The sale-deed executed by father in favour of defendant no.5 is without any legal necessity and consequently, filed the suit for preemption. 7) During the Course of submissions, Mr.Dixit, learned Sr. Counsel, showed readiness 4 AO Nos.112/11 & 149/11 and willingness on the part of the plaintiff to deposit consideration by way of cheque or Pay Order in this Court. 8) On reading the plaint and the application for injunction, one thing is quite clear that the plaintiff did not, in unequivocal words, address that the suit property is in his possession. The learned Judge unfortunately pondered and dwelt to the photographs tendered by the plaintiff to demonstrate that the plaintiff is in possession. The legal position is, when the sale-deed primarily recites about parting of possession of the vendor in favour of the purchaser, will have paramount aspect than the other vendor. That apart, vendor – Jagdish, who is also before the court through his advocate is not disputing execution of such sale-deed in favour of defendant no.5 – Smt. Jyoti; receiving sale consideration of Rs.22,00,000/- and parting of possession of the suit property. Again, after a month of the sale-deed, the present suit is filed. 10) The learned Counsel for the defendant no.5 – Jyoti submits, without admitting any fault of the purchaser Smt. Jyoti, even in future it is established that plaintiff – Ajit has any share in the purchased property. Defendant No.5 is 5 AO Nos.112/11 & 149/11 ready to deposit 1/5th share of said Ajit, which comes to Rs.4,40,000/-. 11) Considering the legal position, the learned Judge should not have swayed away on mere photographs, divorced from pleadings of plaintiff to be in possession of the suit property. It is pertinent, the plaintiff asserts that he is separate in mess and trade from his father and other family members since 1980-1981. In the written statement of the father, a very pathetic condition is projected, particularly in para no. 9, about the activities of the plaintiff while dealing with father and forcing and compelling the father, to meet his legal necessity for two- times meals, to part with possession and to sell the property in favour of the purchaser, defendant no.5. 12) The Hon'ble Supreme Court in Mandali Ranganna and Ors. Vs. T. Ramchandra and Ors. - (2008) 11 SCC 1, dealt with the provisions of Order 39, Rules 1 and 2 of CPC. In that matter, in spite of all the property held by joint family, the Apex court has observed, - the factors to be considered for grant of injunction, conduct of the parties, is also held to be a relevant consideration. 6 AO Nos.112/11 & 149/11 13) In Sunil Kumar and Anr. Vs. Ram Parkash and ors. - AIR 1988 SC 576, the Hon'ble Lordships of the Supreme Court were dealing with joint family property alienation by a Karta. The Lordships have observed, "No doubt, the law confers a right on the co-parcener to challenge the alienation made by the Karta, but that right is not inclusive of the right to obstruct alienation. Nor the right to obstruct alienation could be considered as incidental to the right to challenge the alienation." 14) Considering this legal position, to repeat, the clamp of injunction by the learned Judge in the fact situation, was not answering the swing and the spectrum of Order 39 Rules 1 and 2 of CPC. There was no prima facie case, nor the balance of convenience flows/lies in plaintiff's favour. There is no question of irreparable loss or injury to the plaintiff, even if the plaintiff asserts that there would be injury to him. If the nature of the property is permitted to be changed, for that purpose, appropriate care can be taken. 15) The order of injunction dated 30.5.2011 below Exhibit-5 in Special Civil Suit No.29/2011 is set aside. The Defendant No.5 – Smt.Jyoti Rajendra Kajale to deposit an amount of Rs. 7 AO Nos.112/11 & 149/11 4,50,000/- (Rupees four lakhs and fifty thousand) in this Court within a week. Additionally, the Defendant no.5 shall give an undertaking to this Court, in the event of Special Civil Suit No. 29/2011 is decreed, Defendant no.5 shall, at her own costs, get the entire construction demolished. 16) Consequently, the requirement in Appeal From Order No.149/2011 also addressed. 17) Both the Appeal from Orders are allowed to the extent as above. CA No.8985/2011 for Stay disposed of. (K.U.CHANDIWAL) JUDGE bdv/