-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.105 OF 1990 APPEAL NO.105 OF 1990 APPEAL NO.105 OF 1990 Mahadeo Dhyanu Khule ...Appellant vs. 1.Ramkrishna Shivram Khule 2.Anandrao Shivram Khule 3.Sakharam Hari Khule (since deceased through L.Rs.) 3a. Smt.Gangubai S.Khule 3b. Sahdev S.Khule 3c. Shivaji S.Khule 3d Tanaji S. Khule 4. Sahadeo Hari Khule ...Respondents Ms Neeta Karnik for the Appellant Ms Gauri K.Jadhav for Respondents CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : MARCH 3, 2008. : MARCH 3, 2008. : MARCH 3, 2008. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. Heard the submissions of the learned Advocate for the Appellant. The Appellant is the original plaintiff in a suit simplicitor for injunction. The case of the Appellant-plaintiff in the plaint is that the third Respondent (third defendant) executed a registered sale deed dated 21st July 1980 in his favour in respect of the land more particularly described in clause (b) of paragraph 1 of the plaint. According to the case of the Appellant-plaintiff, the first and second Respondents (defendants No.1 and 2) are the sons of late Shivram Y. Khule. The third Respondent is the cousin of the 1st and 2nd Respondents. The fourth to sixth respondents (fourth to sixth defendants) are the sons of the third Respondent. In the plaint it is averred that after -2- demise of Shivram, the names of Respondents No.1 and 2 were mutated in the revenue record. It is the case of the Appellant-plaintiff that though the names of the Respondent Nos.1 to 3 appeared in the revenue record in respect of the land bearing Gat no.4454, the third respondent was in possession of the northern 1/2 portion of Gat No.4454 which is more particularly described in clause (b) of paragraph 1 of the plaint. It is the case of the Appellant that the southern portion is in possession of the 1st and 2nd Respondents. According to the case of the Appellant, on execution of the sale deed, he was placed in possession of the said northern portion more particularly described in clause (b) of the paragraph 1 of the plaint. According to the case of the Appellant, a consent deed was executed by the Respondent Nos. 4 to 6 in favour of the Appellant thereby confirming the sale deed in favour of the Appellant. It is the case of the Appellant that from 21st July 1980, he has been in possession of the suit property i.e. the property mentioned in clause (b) of the paragraph 1 of the plaint. The suit is filed on the allegation that the Respondent Nos.1 and 2 are trying to interfere with the possession of the suit property. 2. The Respondent Nos.1 and 2 filed the written statement. The case of the Respondent Nos.1 and 2 is that the larger property i.e. Gat No.4454 was a joint property of Respondent Nos.1 to 3 and subsequently the Respondent No.3 inserted the names of the Respondent Nos.4 to 6 in the revenue record. It -3- is the specific case of the Respondent Nos.1 and 2 that there was never a partition of the larger property. 3. The trial court decreed the suit by granting perpetual injunction in favour of the Appellant. In an Appeal preferred by the Respondent Nos.1 and 2, the District Court has interfered with the decree of the trial court by holding that the Appellant was not entitled to injunction. 4. The Second Appeal was admitted on 29th March 1990. While admitting the Second Appeal, this court observed that the ground (2) in the Memorandum of Appeal raises a substantial question of law. The said ground (2) reads thus : "(2) The lower Appellate Court failed to see that the suit was simplicitor for injunction and the only thing that the courts below to could see was whether the plaintiff was in actual possession on the date of the suit." 5. The submission of the learned Advocate for the Appellant is that the first and second respondents never challenged the sale deed executed by the third Respondent in favour of the Appellant which clearly recites that the Appellant was placed in possession of the suit property. She submitted that the Respondent No.3 who is the vendor of the Appellant stepped into witness box and stated that he had put the Appellant in possession of the suit property i.e. northern 1/2 portion of -4- Gat No.4454 at the time of execution of the sale deed. She pointed out that in his cross examination, there is no challenge to the said statement made by the third Respondent. She invited my attention to the oral evidence. It is submitted that the Appellant has established the possession over the suit property on the date of institution of the suit. The reliance has been placed by the learned Advocate for the Appellant on the decision of the Apex Court in case of Prataprai N. Kothari vs. John Braganza [(1999) 4 SCC page 403]. Reliance is also placed on another decision of the Apex Court in case of Sopan Sukhdeo Sable and others Vs. Assistant Charity Commissioner and others [(2004) 3 SCC page 137]. 6. I have carefully considered the submissions. It must be noted here that in the plaint a specific case is made out by the Appellant that the names of the Respondent Nos.1 to 3 appeared in the revenue record as the co-owners of Gat No.4454. It is the case of the Appellant in the plaint that the third Respondent was in enjoyment of the 1/2 portion of the land bearing Gat No.4454 on its northern side and that is how the Appellant was placed in possession of the said property. In the plaint there is no averment that there was a partition effected between the Respondent Nos.1 and 2 on one hand and third Respondent on the other hand before the sale deed was executed in favour of the Appellant. Thus, it is not the case of the Appellant that there was a partition in which the third Respondent was allotted the suit property. The case -5- of the Appellant is that the third Respondent whose name appeared as a co-owner was in possession of the northern portion of Gat No.4454. The Appellate Court has referred to consent deed executed by the Respondent Nos.4 to 6 (sons of the third Respondent) in favour of the Appellant. In the said consent deed which is a registered document, there is a specific recital that the third Respondent has sold his 1/2 undivided share in the property bearing Gat No.4454 which is a jointly held property. The learned Appellate Court has referred to mutation entry on the basis of the sale deed in favour of the Appellant which also records that an undivided share of Gat No.4454 was sold in favour of the Appellant. 7. The Appellant examined the third Respondent as a witness. The third Respondent stated that the suit property was jointly purchased by him alongwith the father of the first and second Respondents. According to his case, he was cultivating the northern portion of Gat No.4454 and the father of the Respondent Nos.1 and 2 were cultivating the southern portion. He has not even come out with a case that there was a prior partition. In the cross examination, the third Respondent has come out with a case of separate cultivation. Thus, what has been found by the Appellate Court is that the Appellant was the purchaser of the 1/2 undivided portion of the suit property. 8. It must be noted here that the Appellant is claiming -6- perpetual injunction on the basis of title claimed on the basis of the sale deed. Even going by the case of the Appellant, the Respondent Nos.1 and 2 are the co-owners of the land bearing Gat No.4454 along with the third Respondent and admittedly there is no partition amongst them. Therefore, even going by the averments made in the plaint, what has been purchased by the Appellant from the third Respondent is the undivided share of the the third Respondent. There is no partition effected. The settled law is that the plaintiff cannot claim injunction against the co-owners. 9. The decision of the Apex Court in case of Prataprai Kothari (supra) will not help the Appellant. The Apex Court was not dealing with the case where the plaintiff was claiming perpetual injunction against the co-owners. Moreover, in the present case, the Appellant is not claiming mere possessory title. The decision of the Apex Court in case of Sopan Sable (supra) will not help the Appellant as the said Judgment does not decide the issue of granting perpetual injunction against the co-owners of immoveable property. 10. Thus, the Appellate Court has rightly held that the Appellant will not be entitled to discretionary relief of perpetual injunction. However, the Appellate Court has observed that the Appellant may successfully claim 1/2 undivided share of his vendor in a suit for partition. -7- 11. No substantial question of law arises. Second Appeal is accordingly dismissed with no order as to costs. JUDGE JUDGE JUDGE