1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.155 OF 2009 Narasgonda Ramgonda Patil since deceased through legal heirs ..Appellants versus Padmavati Patil and Anr. ..Respondents with SECOND APPEAL NO.157 OF 2009 Adgonda Devgonda Patil and others ..Appellants versus Padmavati Narasgonda Patil and Anr. ..Respondents with SECOND APPEAL NO.158 OF 2009 Narasgonda Ramgonda Patil since deceased through legal heirs ..Appellants versus Dadasaheb Appa Patil and Ors. ..Respondents 2 Mr.Godbole i/b. Manjiri Parasnis for the appellant None for the respondents CORAM : R.Y.GANOO, J. DATE : 6th JULY, 2009. P.C: 1. These three appeals involve common point and they were heard together. 2. Mr.Narasgonda R. Patil was the plaintiff in Regular Civil Suit No.426 of 1987 as well as regular Civil Suit No.335 of 1988. He filed these two suits to seek the respective declaration that the sale deeds executed on 7.8.1986 and 9.9.1986 respectively are null and void on the ground that the sale deeds were executed by obtaining power of attorney from his mother Akkatai, by putting pressure, coercion, fraud etc. It was also his case that he happened to be the adopted son of Akkatai and Ramgonda and that the two properties covered by these two suits were owned by Ramgonda and thereafter on account of death of Ramgonda, he 3 and Akkatai succeeded to the said property and as such Akkatai had no right to dispose of the said properties behind his back. It is to be noted that Narasgonda had instituted suit No.56 of 1986 in the Court of Civil Judge, Junior Division, Ichalkaranji, seeking an order of injunction restraining Akkatai from executing the two sale deeds and that injunction was granted in his favour which ultimately came to be dissolved on 26.2.1998. It is submitted that despite the Order of injunction two sale deeds came to be executed on 7.8.1996 and 9.9.1995. The aforesaid two suits came to be filed to seek declaration that the two sale deeds are void as the sale deeds were executed voilating the order of injunction granted in Regular Civil Suit No.56 of 1986. 3. The third suit that is Regular Civil Suit No.551 of 1998 came to be filed by one Padmavati in whose favour sale deed dated 9.9.1986 was executed. Padmavati claimed in the said suit that Narasgonda is trying to interfere in the smooth 4 enjoyment of the property which was sold in her favour by the sale deed dated 9.9.1986. The aforesaid three suits, namely Regular Civil Suit No.426 of 1987, 335 of 1988 and 551 of 1998 came to be tried by the 2 nd Joint Civil Judge, Junior Division, Ichalkaranji(hereinafter referred to as the learned trial judge)and the learned trial judge came to the conclusion that the properties covered by the said suits were not owned by Ramgonda and that the said properties were owned by Akkatai, adoptive mother of Narasgonda. The learned trial Judge also came to the conclusion that Narasgonda was the adopted son of Akkatai and Ramgonda. 4. The finding given by the learned trial Judge that Akkatai was full owner of the two properties covered by two suits, namely 426 of 1987 and 335 of 1988 was primarily based on the admission given by Narasgonda in the course of his evidence. The said admission is quoted by the learned District Judge in his judgment. The said observations are 5 in paragraph 31 of the judgment of the learned District Judge. A reading of the said portion would go to show that Narasgonda in the cross examination admitted that the suit properties were acquired by Akkatai from her maternal side by virtue of inheritance. Said Narasgonda further admitted that Akkatai was exclusive owner of the suit properties. As a result of this finding given by the learned trial Judge that Akkatai was full owner of the property, the only question which was required to be decided by the learned Judge was whether the said sale deeds were obtained by practicing fraud on Akkatai. On appreciation of evidence, the learned trial Judge declined those contentions and in the result the learned trial Judge declined to accept the case of Narasgonda that he had a right in respect of the said properties and that the sale deeds are bad in law. The learned Judge passed appropriate decree dated 21.10.2005. 5. Being aggrieved by the said judgment and decree in 6 the aforesaid three suits, the appeal came to be filed in the District Court at Kolhapur. Said three appeals were numbered as Civil Appeal No.1 of 2006, Civil Appeal No.2 of 2006 and Civil Appeal No.3 of 2006. The three appeals came to be heard and decided by the learned District Judge-I, Ichalkaranji and by judgment and decree dated 15.12.2008, the three appeals came to be dismissed and the judgment and decree delivered by the learned trial Judge concerning the three suits came to be confirmed. 6. Before this Court, learned Advocate Mr. Godbole submitted that the finding given by the learned trial Judge as regards the property not being owned by Ramgonda is illegal. I have considered the relevant part of the judgment of the trial court as well as the learned District Judge. I am not inclined to accept the said arguments. 7. It is important to note that Narasgonda in his cross examination admitted that Akkatai is the 7 full owner of the said properties and that she has inherited the property from her mother s side. Learned Advocate Mr. Godbole submitted that it is clear that the two sale deeds dated 7.8.1986 and 9.9.1986 were executed when the Order of injunction in Suit NO.56 of 1986 was running against the concerned persons and therefore the said deeds should have been declared as null and void and as the Courts below have not done it, it is error on their part and is required to be reconsidered by this Court. 8. In so far as the submission of learned Advocate Mr. Godbole that a sale deed executed while injunction is running against a particular party is void is required to be accepted as a matter of principle. However, such a principle cannot be applied to this case for the following reasons. The fact that Narasgonda admitted in cross examination that Akkatai was full owner of the property is a point which goes against Narasgonda. It is not the case of Narasgonda that at the time 8 of filing Suit No.56 of 1986, on the basis of record available to him he bonafide believed that he and Akkatai were joint owners. The admission on the part of Narasgonda clearly goes to show that on the date of institution of suit NO.56 of 1986 he was fully aware of the fact that Akkatai has succeeded to the property from her parent s side. 9. Considering the conduct of Narasgonda which is discussed above it will have to be noted that at the time of filing of Suit No.56 of 1986 he fully knew that Akkatai was full owner of suit properties from her parents side. It will have to be noted that depsite such knowledge he filed suit No.56/1986 and snatched the order of injunction. The institution of Suit No.56 of 1986 was not bonafide. 10.Learned Advocate Mr. Godbole submitted that if this court is inclined to accept the proposition that if the sale deed is executed during the 9 subsistence of an order of injunction is running against the party, the said sale should be treated as void then no distinction should be made in this case and the other cases and the orders impugned should be looked into. 11. I do not agree with the submission advanced by the learned Advocate. Here is the case where the Narasgonda knew as to who is the real owner of the property i.e. he fully knew that Akkatai was owner of the property and despite that he instituted Suit No.56 of 1986 and snatched the order of injunction and then filed the two suits to seek declaration that the sale deeds are void. In my view, the conduct of Narasgonda as discussed above is such that he cannot get the benefit of the proposition advanced by learned Advocate Mr. Godbole. In my view the present case will have to be treated as an exception to the proposition put up by learned Advocate Mr. Godbole. For the reasons mentioned aforesaid, I am not inclined to accept the argument advanced by learned Advocate 10 Mr. Godbole that the courts below erred in arriving at the conclusion as regards the validity of the said sale deeds. 12.For the reasons mentioned aforesaid, the appeals will have to be dismissed at the stage of admission. Hence the order: ORDER Each of the second appeal is dismissed. In the facts and circumstances of the case, there shall be no order as to costs. Civil application No.628 of 2009 in Second Appeal 157 of 2009, Civil Application NO.626 of 2009 in Second Appeal No.158 of 2009 and Civil Application No.627 of 2009 in Second Appeal No.155 of 2009 are dismissed in view of dismissal of the appeals. There shall be no order as to costs. (R.Y.Ganoo, J.) 11