:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE APPEAL FROM ORDER APPEAL FROM ORDER APPEAL FROM ORDER NO.653 OF 2006 NO.653 OF 2006 NO.653 OF 2006 WITH WITH WITH CIVIL APPLICATION NO.880 OF 2006 CIVIL APPLICATION NO.880 OF 2006 CIVIL APPLICATION NO.880 OF 2006 Balaso Ananda Bhosale Age 47, Occ: Social Work, R/o. Herle, Tal:Hatkanangale, District: Kolhapur ...Appellant. v. 1. Sou. Lalita Krishna Hawaldar Age: 35 yrs., Occ: Agri & Household, 2. Poonam Krishna Hawaldar Age: 19 yrs., Occ: Agri & Education, 3. Prashant Krishna Hawaldar Age: 17 yrs., Occ: Agri & Education, Minor through natural guardian, R.No.1 4. Preeti Krishna Hawaldar, Age: 15 yrs., Occ: Agri & Education, Minor through natural guardian, R.No.1 5. Dhondiram Baburao Hawaldar Age: 58 yrs., Occ:Agriculture, 6. Jaysing Baburao Hawaldar, Age: 41 yrs., Occ: Agri & Service, All above r/at: Herle, Tal: Hatkanangale, Dist: Kolhapur, 7. Smt. Sushila Jalandhar Patole, Age: 40 yrs., Occ:Household, R/at: New Palace Road, Patole Mala, Kolhapur. 8. Chandrakant Dattatraya Shinde, Age: 25 yrs., Occ: Agriculture, R/at: Didnerli, Tal: Karvir, District:Kolhapur 9. Krishna Baburao Hawaldar Age: 43 yrs., Occ:Service & Agri. R/at: Herle, Tal:Hatkanangale, Dist: Kolhapur. 10. Shantinath Dattatraya Shinde, Age: 30 yrs., Occ: Agriculture, :2: R/at: Didnerli, Tal: Karvir, District: Kolhapur. 11. Narayan Dattatraya Shinde, Age: 22 years, Occ:Agriculture, R/at: as above. ...Respondents. Mr.S.S.Patwardhan , adv. for the Appellant. Mr.Satyajeet Mirajkar i/by G.S.Godbole , advs. for the Respondent Nos.1,2,3,4,5 to 10. CORAM: CORAM: CORAM: J.H.BHATIA,J. J.H.BHATIA,J. J.H.BHATIA,J. DATE: 2nd April, 2008. DATE: 2nd April, 2008. DATE: 2nd April, 2008. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. Heard the learned counsel for the Parties. 2. The present appellant is the original defendant no.1. Respondent no.1 to 8 are original plaintiffs while, the respondent nos.9 to 11 are the original defendant nos.2 to 4. For the sake of convenience, the parties may be referred to as the plaintiffs and defendants. 3. According to the plaintiffs, land survey no.429 situated at Village Herle, Taluka: Hatkanangale, District: Kolhapur is the joint family property of the plaintiffs and the defendant no.2. It was ancestral property of one Baburao, who died on 10-6-1999 leaving behind three sons namely, Dhondiram, Krishna, Jaising, one daughter and legal heirs of one deceased daughter. According to the plaintiffs, no partition had taken :3: place and the land survey no.429 is in joint possession of the plaintiffs. However, the defendant no.1 had without making any payment of consideration obtained a sale-deed of 1/3rd portion of the said land from the defendant no.2 Krishna. Some of the plaintiffs are wife and children of the said Krishna. Plaintiff Nos.5 and 6 are brothers of the said Krishna. According to them as they are in joint possession of the property and no partition had taken place, sale deed executed by Krishna in favour of the defendant no.1 is not binding on them. With these contentions, they filed suit for setting aside the sale deed and for declaration that it is not binding on them. By application, Exhibit 5, they sought temporary injunction against the defendant no.1 restraining him from causing any interference over the possession of the plaintiffs over the suit land. The defendant no.2 did not appear and did not file any written statement. The defendant no.1 contested the suit by filing written statement and reply to Exhibit 5. According to him, partition had taken place among the brothers long back and mutation entry was also taken. They were in separate possession of their shares. The defendant no.1 had purchased 1/3rd share, which had gone to the share of the defendant no.2. He had received consideration of Rs.3,60,000/- and for valuable consideration, he had executed the sale deed on 28-10-2002 and the sale deed was also registered. According to him, defendant no.2 had sold the land for :4: legal necessity of the family as he had to clear certain loans taken from different banks, co-operative societies and private persons. 4. After hearing the parties, the learned trial Court allowed the application, Exhibit 5 and restrained the defendant no.1 from interfering and obstructing in possession of the plaintiff over the suit land till decision of the suit. That order has been challenged in the present appeal. 5. The learned counsel for the defendant no.1/appellant vehemently contended that there are number of documents to show that the partition had taken place between the brothers in 1991 and on that basis, mutation entry no.4408 was taken in respect of four lands including gat no.429. According to him, as per that mutation entry, father of the plaintiff no.5 and 6 and defendant no.2 had informed the concerned Talathi that he had orally partitioned the property among his sons and accordingly, entry was taken. He also contended that on the basis of that the plaintiff nos.5 and 6 and defendant no.2 were holding their shares in the property separately and independently each of them had also obtained loans from different banks and societies against their shares in the property. It is contended that suit is filed by the plaintiffs in conspiracy with the defendant no.2 just to grab the :5: property. According to him as per the sale deed, possession has been given to the defendant no.1 and he is in exclusive possession of the same. 6. On the other hand, the learned counsel for the plaintiff/respondents contended that mere mutation entry is not sufficient to prove that partition had taken place by metes and bounds. He also pointed out that the sale deed in favour of the defendant no.1 does not disclose which particular portion of Gat No.429 was purchased by him. According to him, there is a material difference in the boundaries of the land shown in the sale deed and in the written statement of defendant no.1. He contended that if the defendant no.1 has purchased share of the defendant no.2 in the joint family property, his only remedy is to file suit for general partition but he can not exclude the other members of joint family from joint possession of the property. 7. After perusal of record, it appears that on 19-12-1991, mutation entry no.4408 was taken in respect of four lands including gat no.429 and as per the said entry, Baburao Shripati Hawaldar father of the plaintiff no.5 and 6 and the defendant no.2 had informed that he had partitioned these lands among his sons and each of them had 1/3rd share in the said lands. It is true that there are entries of the years 1999, 2000 and 2001 to :6: show that plaintiff no.6 Jaising had obtained loan of Rs.1.25 lakh against his share in gat no.429 and 768 from Vadgaon Urban Co-operative Bank and had executed a registered mortgage deed. Similarly, he had also obtained loan of Rs.80,000/- from Chandraprabha Vivid Karyakari Seva Sanstha and a charge was put on his share in different lands including gat no.429. Similarly, defendant no.2 Krishna had also obtained loans from Chandraprabha Vivid Karyakari Seva Sanstha, Vadgaon Urban Co-operative Bank from one Jaiprakash Bapu Patil. It is contended that defendant no.2 Krishna had mortgaged his share in the land gat no.429 with Jaiprakash and had also given possession to him on 16-12-2001. Anyway original mortgage deed is not before the Court to show that possession was actually given to him. While some presumptive value may be attached to revenue record, same is not conclusive evidence of the partition between the parties. 8. In written statement filed by the defendant no.1, description of the property is given in paragraph 4. As per the Written Statement, he had purchased 57 R out of gat no.429 admeasuring 1 H 70 R and the land purchased by him is bounded as follows: 1. To the East : Nala. 2. To the West : Government Land. :7: 3. To the South: land of Ashok Bapu Bhosale. 4. To the North: land out of gat no.429 which had gone to the share of defendant no.5, i.e., Dhondiram. 9. However, in the sale deed, boundaries of the land purchased by the defendant no.1 are given as follows: 1. To the East: Nala. 2. To the West: Government land. 3. To the South: land of Ashok Bapu Bhosale. 4. To the North: land of Dadaso Anna Hawaldar. As far as Eastern, Western and Southern boundaries are concerned, they tally. Admittedly, one Dada A. Hawaldar holds land bearing different gat number and that land is situated to the North of the Gat No.429. If sale deed is looked into, it will indicate that defendant no.1 had purchased 1/3rd share of the defendant no.2 Krishna from Gat No.429 but it does not disclose if any particular portion of that land gat no.429 was purchased and he was put in possession of that portion of the land. However, in paragraph 4 of the written statement, he has tried to show that to the Northern side is the land out of Gat No.429, which had :8: gone to the share of defendant no.5 (Possibly plaintiff no.5). It indicates that he had purchased Southern 1/3rd share out of gat no.429. However, in paragraph 4 itself it is mentioned that Eastern 1/3rd share out of gat no.429 was allotted to defendant no.2. Thus, in paragraph 4 of the written statement at one place it is clearly mentioned that Eastern 57 R land was allotted to the defendant no.2 in partition and that was purchased by the defendant no.1 but the boundaries indicate that he was in possession of Southern 1/3rd share out of Gat No.429. On the other hand, sale deed is totally silent in respect of particular portion, which had gone to the share of the defendant no.2 and which was purchased by the defendant no.1. 10. In view of this discrepancy in the boundaries, it is difficult to say that the defendant no.1 had actually taken possession of specific portion of the land gat no.429 under the sale deed. If it is so, it may be held that he had purchased only 1/3rd share out of Gat No.429, which is joint family property. According to the plea of the plaintiffs, partition had not taken place and the property is joint family property. 11. In such circumstances, defendant no.1 can not claim exclusive possession over any particular portion of land Gat No.429 while plaintiffs can claim possession :9: of the whole of the land unless the partition takes place. In Smt. Kailash Pati Devi v. Smt. Smt. Kailash Pati Devi v. Smt. Smt. Kailash Pati Devi v. Smt. Bhubneshwari Devi and others AIR 1984 SUPREME COURT Bhubneshwari Devi and others AIR 1984 SUPREME COURT Bhubneshwari Devi and others AIR 1984 SUPREME COURT 1802 1802 1802, the Supreme Court had clearly stated that purchaser of joint family property from a member of the family may have right to file general suit for partition against the members of the joint family and that may indeed be the proper remedy to effectuate his purchase. This authority is also referred to by the learned trial Court. 12. The relief of temporary injunction is discretionary by nature and it is settled position of law that normally the Appellate Court will not interfere in the discretion used by the trial Court unless it can be pointed out that findings of the trial Court are per-se illegal, perverse or against the record. I do not find any such fault in the impugned order. 13. In the result, appeal stands dismissed. In case, the defendant no.1/appellant files suit for general partition to effectuate the sale deed, such suit and the Special Civil Suit No.329 of 2005 shall be heard and disposed off together by the trial Court and shall be disposed off as early as possible. 14. As the appeal itself is disposed off, civil application does not survive and stands disposed off :10: accordingly, (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)