1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 5110 OF 2008. WITH CIVIL APPLICATION NO.6968 OF 2009. Shrungmuni s/o Shivaji Niranjan, since deceased through L.Rs. .... PETITIONERS. VERSUS Waman Dodhuji Baste & others .... RESPONDENTS. ... Shri Ashpak Patel, Advocate holding for Shri S.V. Gangapurwala, Advocate for Petitioners. Shri V.P. Mule, Advocate for Respondents No.1 & 4. ... CORAM : S.S. SHINDE, J. DATE : 10th AUGUST, 2009. PER COURT: 1. This petition is filed challenging the order dated 7th April, 2008 passed by the District Judge-1, Aurangabad in Misc. Civil Appeal No.38 of 2008 with further prayer to restore the order dated 16th January, 2008 passed by the 6th CJ.J.D., Aurangabad below Exh.153 in R.C.S. No.1254 of 2000. 2. The brief facts, as narrated in the petition, are as under: 2 The present petitioner who is original plaintiff has filed suit bearing Special Civil Suit No.558 of 1996 (Old) new R.C.S. No.1254 of 2000 for partition and separate possession of 1/3rd share of the present petitioners in the land bearing Gut No.11, situated at Padegaon, tq. & Dist. Aurangabad, admeasuring 80 gunthas. The property was initially owned by one Manaji Nandram Gawalibansi, who sold it to the present petitioner and the respondent Nos. 1 and 2, by a registered sale deed dated 17th October, 1966. 3. It is the case of the petitioners that on 27.1.1993 the petitioners have received a letter from the respondent no.3 thereby calling on the petitioner to supply certain documents and to execute an affidavit in favour of the society. The petitioner, being aggrieved by the letter called for clarification from the said respondents. After due inquiry, the petitioner filed Special Civil Suit No.588 of 1966, which was subsequently numbered as R.C.S. No.1254 of 2000, thereby seeking partition and separate possession of the property. 4. It is the case of the petitioners that for the first time in 40 years after the purchase of the property by the present petitioners, the respondent No.4 and its alleged members have tried to raise a claim that they are entitled for the demarcation and allotment of plots. The petitioners filed an application below Exh.153 before the trial Court 3 thereby claiming the relief of injunction against the respondents. 5. On 16th January, 2008, the 6th C.J.J.D., Aurangabad has directed the parties to maintain status quo. 6. Feeling aggrieved by the order dated 16th January, 2008 passed by the 6th C.J.J.D., Aurangabad below Exh.153 in R.C.S. No.1254 of 2000, the Respondents filed Misc. Civil Appeal No.38 of 2008 before the District Court. The District Court set aside the order passed by the trial Court dated 16th January, 2008. However, the defendants are directed to preserve one plot of choice of the plaintiffs identical in area with the plots of other members of the Society till the decision of the suit. 7. The learned Counsel for the petitioners submitted that there was no occasion for the lower appellate Court to interfere in the well reasoned order passed by the trial Court directing the parties to maintain status quo. It is further submitted that at least at the interlocutory stage, the recitals of the sale deed shall be taken as it is. When the recitals of the documents are unambiguous, no oral evidence is permissible. It is further submitted that when triable issues are involved in the case, then the subject matter of the lis is to be protected. If the nature of the suit property is changed the position would become irreversible resulting in irreparable loss and damage to the petitioners. 4 It is further submitted that the registered sale deed of the property has been executed in favour of the petitioner and respondent nos.1 and 2 and this itself is sufficient to establish strong prima facie case. It is further submitted that when the conclusion arrived at by the trial Court appears to be a probable conclusion, in such circumstances, the lower appellate Court ought not to have interfered in the orders of the trial Court. The learned Counsel invited my attention to the findings recorded by the trial Court in support of his contention that the order passed by the trial Court is well reasoned order. The learned Counsel further invited my attention to the grounds taken in the petition as well as annexures thereto and also to the judgment of the lower appellate Court to point out that the lower appellate Court has not properly considered the submissions of the present petitioners and erroneously set aside the well reasoned order passed by the trial Court. 8. The learned Counsel appearing for the respondents invited my attention to the judgment and order passed by the lower appellate Court and submitted that the society is registered and is in existence. The petitioner collected amount from the members and society was formed. The petitioner was Secretary of the Society in the year, 1993. According to the learned Counsel, though it is contended by the petitioner that the amount which was collected from the members of the society is returned back, it is yet to be proved whether the amount is returned back to the members or not and, therefore, as on today, the position is that the land 5 belongs to the society. It is further submitted the without recording the findings as to who is in possession of the property, the trial Court has granted interim order, which is not permissible in law. In support of his submission, the learned Counsel for the respondents relied on the judgment of the Apex Court in the case of Kishore Kumar Khaitan and another vs. Praveen Kumar Singh [(2006) 3 SCC 312]. The learned Counsel further submitted that Appeal From Order should have been filed by the petitioners and not the writ petition. The learned Counsel further submitted that the members of the society who have invested their hard earned money, are waiting for the fruits of their investment. 9. I have heard the learned Counsel for the petitioners and respondents at great length. It is assertion of the respondent no.1 that at present he is Chairman of the Jai Bharat Magasvargiya Co-op. Housing Society Ltd., Padegaon, Taluka and District Aurangabad. He was chief promoter of the said society before he became Chairman in the year, 2001. It is further assertion of the respondent No.1 that from the date of inception of the society in or about 1966, he is chief promoter. It is to be noted that the petitioner and respondents 1 and 2 herein are the original three persons in whose name the land was purchased for society. The lower appellate Court in paragraphs 8, 24, 26 and 27 has commented on the trial Court and came to the conclusion that the order passed by the trial Court is not sustainable. It is to be noted that the trial Court was not correct in holding that the petitioners have prima facie case and balance 6 of convenience is in favour of the petitioners when out of three vendees, two vendees averred that the land was purchased not for the personal use of three vendees but for Cooperative Housing Society i.e. Respondent No. 4. 10. On careful perusal of the facts stated in the petition, it is required to be noted that the facts which are narrated in the petition are not complete facts mentioned as existed before the lower Courts. It is also required to be taken note of that in pursuance of the order passed by the lower appellate Court, it appears that the petitioners have accepted the said order and filed purshish dated 29th July, 2009 stating therein that as per the order of the District Court and as per the affidavit given by Waman Baste the plaintiffs have selected Plot No.1 of their choice and this plot is reserved by them till decision of the suit. On this backdrop, in my view, having been accepted the order passed by the lower appellate Court, now it is not open for the petitioners to contend that the order passed by the trial Court should be maintained till the disposal of the suit. 11. The lower appellate Court has taken note of the fact that on 29.7.2002 the plaintiffs tried to obtain temporary injunction but, those proceedings were abandoned by themselves later on. On careful perusal of the facts of the case, it appears that the suit property was purchased for the society and for benefit of its members. It is not in dispute that the society was registered in 2001. It is also not in dispute that the present 7 petitioner and respondents 1 and 2 are the original vendees. It is also the fact that yet the petitioners have not proved the fact that the amount which was collected from the members of the society has been returned to them. 12. The lower appellate Court, in paragraph 26, has observed that when prima facie the plaintiff is only entitled to the right of membership of the society, his claim of ownership affecting the development of the entire suit land, is quite unfair and inequitable. Taking overall view of the matter, the lower appellate Court has taken a reasonable and possible view of the matter. In my considered view, the order passed by the lower appellate Court does not call for interference. 13. Hence, the writ petition is dismissed. Civil Application No.6968 of 2009 does not survive and it is disposed of. It is needless to mention that hearing of the suit pending before the trial Court should be expedited keeping in mind the order dated 14th January, 2009 passed by this Court in Writ Petition No.1902 of 2008. [ S.S. SHINDE, J ] PLK/# ...