1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3369 OF 2009 Kashibai w/o Dashrath Chopade Age 86 yrs., Occ-Household & Agril R/o Nanalpeth, Parbhani, Tq. & Dist. Parbhani, through her G.P.A. holder Smt. Santabai W/o Dhondiba Awchar Age 65 yrs., Occ-Agril & Household R/o as above. ... PETITIONER [ORIG.PLAINTIFF] Versus 1] Munjaji Gyanoba Dukare Age 65 years, Occ-Agri, R/o Dharangaon, Tq. & Dist. Parbhani 2] Sakharam Dnyanoba Dukare Age 51 yrs, Occ-Agril R/o Dharangaon, Tq. & Dist. Parbhani. 3] Ratnamala W/o Sakharam Dukare Age 69 yrs, occ-household R/o As above. 4] Ananta D/o Sakharam Dukare Age 30 yrs, Occ-Service R/o Laxminagar, Parbhani. 5] Ramakant S/o Sakharam Dukare 2 Age 29 yrs, Occ-Auto Driver R/o As above. 6] Dagdoba s/o Dnyanoba Dukare Age 61 yrs, Occ-Agril R/o Dharangaon, Tq. & Dist. Parbhani. 7] Madhav S/o Dagdoba Dukare Age 30 yrs, Occ-Agril R/o As above. 8] Girja W/o Dagdoba Dukare Age 53 yrs, Occ-Agril R/o as above. ... RESPONDENTS [ORIG.DEFENDANTS] .... Shri M.M.Patil (Beedkar) Adv.for petitioner. Shri S.S.Gangakhedkar,Adv.for Respondent no.1. .... CORAM : R.K. DESHPANDE, J. DATE : 8th JUNE, 2010. ORAL JUDGMENT : 1] This petition challenges the order dated 12/3/2009 passed by learned District Judge-II, Parbhani, allowing application Exh.5 filed by the Original Defendant No.8 and staying operation of the decree dated 18/10/2008 passed in 3 Regular Civil Suit No.92/2004 only against the defendant no.8. This Writ Petition is preferred by the original plaintiff. 2] Shri S.S.Gangakhedkar, learned counsel filed caveat for respondent no.1 i.e. the original defendant no.8 and he waives service of notice. Shri Patil, learned counsel for the petitioner submits that he does not want to press the instant Petition against respondents no.2 to 8, who are the original defendants no.1 to 7. The parties agree that the matter can be disposed of at the stage of admission itself. Hence, Rule. Rule made returnable forthwith. Shri Gangakhedkar, learned counsel waives service of notice of Rule on behalf of respondent no.1. 3] Heard learned counsel for respective parties. The petitioner Orig.Plaintiff filed Regular Civil Suit No. 92/2004 for permanent injunction restraining the Orig.Defts.No. 1 to 7 from disturbing the possession of the plaintiff over the suit property. During the pendency of the suit, on the application of the defendant no.8, he was added as party. However, in the prayer clause, the permanent injunction claim was only against the original defendants no.1 to 7. The trial Court passed a decree of permanent injunction on 18/10/2008 against all the defendants. The defendant no.8 preferred Regular Civil Appeal No.131/2008, which is pending for adjudication. The defendant no.8 filed 2 separate applications : 4 (1) Exh.5 for stay to the operation of the decree dated 18/10/2008 passed in Regular Civil Suit No.92/2004 to the extent it is against the defendant no.3 and (2) Exh.15 for temporary injunction, restraining the plaintiff from disturbing possession of the defendant no.8. 4] By common order dated 12/3/2009, the learned District Judge-II, Parbhani, rejected application at Exh.15 for grant of injunction and allowed the application at Exh.5, staying the operation of the decree dated 18/10/2008 passed in Regular Civil Suit No.92/2004 to the extent it operates against defendant no.8. While rejecting application Exh.15 for injunction, the learned Judge of the appellate Court has observed in paragraphs no. 11 and 12 as under : “11] On perusal of plaint it appears that the property in dispute is land admeasuring about 80 R. bearing Gat no.121 bounded as : East : Government Pandan.. West : Land of Waman Limbaji Waibhase South : Share of Munjaji Gyanba in Gut No.121 & North : Dharangaon Karegaon Road. Whereas, the plaintiff claiming relief of injunction in respect of land admeasuring 1 H. 12 R. bearing Gat no.121 bounded as : 5 East : Land of Madhav West : Land of Dwarkabai South : Land of Ramrao North : Government Road. 12] On perusal of boundaries of the lands referred above, it appears that the boundaries of the suit land are different than that of boundaries of the land of the defendant no.8. Therefor,e though relief as asked as per Exh.5 and 15 is one and the same, however, for the purpose of different property and therefore, in my opinion, applications at Exh.5 and 15 are maintainable. Hence, I answer point no.1 in affirmative.” 5] Thus, the application for grant of injunction filed by the defendant no.8 was rejected. However, the application Exh.5 for stay of the decree passed in Regular Civil Suit No.92/2004 has been allowed to the extent it operates the defendant No.8. The operative part of the decree stayed by the trial Court on 18/10/2008 is reproduced below : “ 6] In view of the aforesaid position, the order passed by the 6 appellate court below Exhs.5 and 15 needs to be reconciled. The original defendant no.8 has not challenged the order passed below Exh.15 on 12/3/2009 passed by appellate Court in Regular Civil Appeal No.131/2008. 7] In view of the findings recorded in paragraphs 11 and 12 which are reproduced above, the stay granted by the appellate Court to a decree dated 18/10/2008 passed in Regular Civil Suit No.92/2004 shall not operate in respect of the property which is described in paragraph no.11 of the appellate Court’s order, which is reproduced above. However, it is made clear that the stay shall remain operative in respect of property excluding the portion specified in paragraph no.11 of the appellate Court’s order. 8] In the result, the Petition succeeds. The order dated 12/3/2009 passed below Exh.5 by the appellate Court in Regular Civil Appeal No.131/2008 stands modified as above. There shall be no order as to costs. [R.K. DESHPANDE, J.] umg/wp3369-09