1 WP-5159.11&5229.11.sxw lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5159 OF 2011 Maruti Rakhmaji Lokhande : Petitioner versus Jainabi Babso Pimpari : Respondent WITH WRIT PETITION NO.5229 OF 2011 Shivaji Birappa Tambe and ors. : Petitioners versus Jainabi Babso Pimpari : Respondent. Mr.S G Deshmukh i/by Mr. Abhijeet Kandarkar for the Petitioners. Mr. Uday P Warunjikar for the Respondent. CORAM : R M SAVANT, J. DATE : 14th November 2011 P.C. 1 The above Petitions take exception to the common order dated 27/4/2011 passed by the learned Principle District Judge, Sangli by which order the Misc. Civil Appeal Nos.52 of 2011 and 53 of 2011 filed the Respondent above named came to be allowed and resultantly the order refusing the temporary injunction passed by the trial Court came to be set aside, and the application for temporary injunction filed the Respondent herein, who is the Plaintiff in the said Suits, came to be allowed. 2 The Petitioners above named, who are the original Defendants, claimed to have purchased a share of one Wahida who was the sister of the Respondent above named. The said Wahida, the Respondent herein Jainabi, 2 WP-5159.11&5229.11.sxw and one Banu were the daughters of one Babaso Ismail. The said Babaso Ismail gifted the property in question to the said three daughters. The cause for filing Regular Civil Suit Nos.72/09 and 73/09 was the apprehension of the Plaintiff that the Petitioners herein who are the purchasers of the share of said Wahida would interfere with the possession of the Plaintiff. The suits were therefore filed simplicitor for injunction against the Petitioners above named who are the Defendants in the said suits. In the said suits, an application Exhibit-5 came to be filed by the Plaintiff for temporary injunction. The sum and substance of the case of the Plaintiff in the said application was that the land in question has been gifted to the Plaintiff and her sisters by their father, and the Defendants in both the suits could therefore not have purchased the land in question as the land was not partitioned and was of the joint holding. The said Application Exhibit-5 was opposed by the Defendants by filing their written statements and replies by contending that after the death of the said Wahida and in view of the dispute between the parties as regards the benefits from the land in question, the parties had decided to partition the land in question pursuant to which the land was divided into three strips in the year 2000 and that the parties were in possession of their respective shares and were cultivating them. In the said application the Defendants had filed affidavits of the vendors and the local villagers who were the panchas who were purportedly present at the time of partition, to buttress the case of the Defendants that in fact partition has taken place. 3 WP-5159.11&5229.11.sxw 3 The trial Court on the basis of the material on record and especially taking into consideration the fact that the sister of Banu had sold her share to one Haroon to which Plaintiff has not taken any objection and also taking into consideration the affidavits filed by the husband of Wahida and the local villagers recorded a finding that prima case was not made out, and the said application Exhibit 5 resultantly came to be rejected by an order dated 12/2/2010. 4 Aggrieved by the said order dated 12/2/2010 passed by the trial Court, the Plaintiff filed two Appeals against the orders passed in the Application Exhibit 5 filed in both the suits. The said appeals were numbered as Misc. Civil Appeal Nos.52/10 and 53/10. The First Appellate Court allowed the said Appeals and resultantly granted application Exhibit 5 filed by the Plaintiff for temporary injunction in both the suits . What has weighed with the First Appellate Court, as can be seen from the impugned order is that the Defendants have themselves filed a counter claim claiming partition. The First Appellate Court has also taken into consideration the fact that though it is the case of the Defendants that the partition in fact has taken place, no revenue record in that respect was produced. The First Appellate Court also took into consideration the boundaries mentioned in the sale deed executed by the said Banu in favour of Haroon which according to the First Appellate Court were the boundaries of the entire land and were not specific to the land purportedly sold by the said Banu to the said Haroon. In so far as affidavits on which much 4 WP-5159.11&5229.11.sxw store was laid by the trial Court, the First Appellate Court was of the view that in a matter as serious as partition, the Court could not rely upon the affidavits filed by the villagers and the parties. 5 Heard the learned counsel for the parties. Shri Deshmukh, the learned counsel for the Petitioners in both the Petitions sought to rely upon Section 160 of the Principal of Mohmmeden Law in support of his contention that the suit itself is not maintainable as unless the shares are carved out, the gift is irregular. It is required to be borne in mind that gift to the three sisters which includes the Plaintiffs was of the entire land and not a particular share out of the said land to each of them. In the said context the submission of the learned counsel for the Petitioners is, in my view, mis-founded. 6 Having considered the impugned order and the findings recorded therein, in my view, the First Appellate Court was right in upsetting the order passed by the trial Court. The First Appellate Court has weighed the material on record and has reached a conclusion that exercise of the discretion by trial Court in the facts and circumstances of the case was not warranted. Having perused the reasoning of the First Appellate Court, in my view, no case for interdiction in the writ jurisdiction of this Court is made out. The above Writ Petitions are accordingly dismissed. However, looking to the facts and circumstances of the case and the nature of the dispute which is as regards the shares of the heirs of the original owner, it would be just and proper to 5 WP-5159.11&5229.11.sxw expedite the hearing of Regular Civil Suit Nos.72/09 and 73/09 which is accordingly expedited and both the suits are directed to be disposed of by 31st October 2112. [R.M.SAVANT, J]