1 WP 4668-2010.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4668 OF 2010 Babamiya Allimiya Mandalekar and anr. ..Petitioners Vs. Pandurang Tukaram Reshim and ors. ..Respondents ......... Mr.C.G.Gavnekar, for petitioners. ......... CORAM: R.G.KETKAR, J. DATE : 23rd SEPTEMBER, 2010. P.C. : Heard Mr.C.G.Gavnekar, learned counsel for the petitioners. This petition challenges the judgment and order dated 17 th May, 2010 passed by the learned District Judge ­1, Khed in Civil Misc. Appeal No.10 of 2009. By that judgment, learned District Judge restrained the petitioners and original defendants no.1 and 2 either by themselves or through anybody on their behalf from obstructing the possession of respondent no.1 original plaintiff as a co­sharer in the suit property excluding share erected by petitioner no.1 – defendant no.1 to the western side portion of suit property. 2] Mr.Gavnekar submitted that initially survey No.37/1 which is now numbered as Survey No.9/1A was owned by Ramji. He died in the year 1960 leaving behind three sons (1) Sambhu (since deceased), (2) Tukaram (since deceased) and (3) Vishram (since deceased). Sambhu died leaving behind Dhondu, present respondent no.2 herein / original defendant no.3. 2 WP 4668-2010.sxw Tukaram died leaving behind Pandurang, Sitaram, Janabai and Mangala. Vishram died leaving behind Vatsala and Anandi (wife). It is the case of petitioners that there was partition amongst the three brothers namely Sabhu, Tukaram and Vishram. Western 1/3 rd portion was allotted to Sambhu. Middle 1/3 rd portion was allotted to Tukaram and Eastern 1/3 rd portion was allotted to Vishram. Respondent no.2 Dhondu made an application on 1 st December, 1994 to Sub­Divisional Officer, Dapoli seeking permission for selling 1/3 rd Western portion which was survey No.9/1B to the petitioner. On 16 th January, 1995, the Sub­Divisional Officer granted permission as sought for by respondent no.2. Accordingly, sale deed was executed on 31 st January, 1995 by respondent no.2 Dhondu in favour of petitioner no.1. He submits that in pursuance of sale deed, petitioner no.1 was in possession of 1/3 rd Western portion that fell to the share of Dhondu. 3] Respondent no.1 original plaintiff instituted suit on 9 th August, 2007 for perpetual injunction restraining the petitioners from occupying open space excepting the area covered by shed as also restraining petitioner from obstructing their joint possession. He further prayed for mandatory injunction directing petitioner herein to demolish the shed admeasuring 15 ft. x 15 ft. 4] During the pendency of suit, respondent no.1 took out an application exhibit 5. By the judgment and order dated 24 th April, 2009, learned Civil Judge issued injunction restraining petitioners herein from disturbing the peaceful possession of respondent no.1 in respect of survey no.9/1A. In so far as respondent no.1, prayer for injunction in respect of survey no.9/1B 3 WP 4668-2010.sxw was rejected. 5] Being aggrieved by this judgment and order, the first respondent preferred Civil Misc. Appeal No.10 of 2009. By the impugned judgment and order, learned District Judge, Khed allowed the said appeal and issued injunction as referred hereinabove. 6] In support of the submission, Mr.Gavnekar submitted that the suit was instituted belatedly in the year 2007 while the sale deed was executed on 31 st January, 1995. He further submitted that the learned District Judge committed error in disbelieving oral partition among the three brothers. He therefore submitted that after the sale deed was executed on 31 st January, 1995, mutation entry was made in favour of petitioners after issuing notice to the parties including the first respondent. He submitted that the learned District Judge committed error in passing the impugned order. 7] I have considered the submissions made by learned counsel for the petitioners. Perusal of sale deed dated 31 st January, 1995, prima facie, indicates that the case made out by the petitioners that 1/3 rd Western portion which fell to the share of respondent Dhondu was sold to petitioner no.1, is not borne out. Even the sale deed, prima facie, does not indicate boundaries of survey no.9/1B which petitioner no.1 claims to have purchased from Dhondu. It, therefore, cannot be said that the petitioners were in separate possession of the suit lands. In my opinion, the learned District Judge has rightly issued notice restraining the petitioners herein either by themselves or through anybody on their behalf from obstructing 4 WP 4668-2010.sxw possession on behalf of the respondents original plaintiffs as co­sharer and the suit property excluding their share to the western side portion of the suit property. No case for interference under Article 227 of the Constitution of India is made out. Findings recorded by learned District Judge cannot be said to be either perverse or that they suffer from error of law apparent on the face of record. In the result, I do not find any substance in the petition and the same is rejected. [R.G. KETKAR, J.]