( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO. 74 OF 2002 WITH CIVIL APPLICATION NO. 4926 of 2002 Ajitprasad s/o. Dwarkaprasad Jaiswal .. Appellant Age. 51 years, Occ. Business, R/o. N-1, CIDCO, Aurangabad. Versus 1. Maheshprasad s/o. Dwarkaprasad Jaiswal .. Respondents Age. 43 years, Occ. Business, R/o. Shaha Bazar, Aurangabad. 2. Pravinkumar s/o. Dwarkaprasad Jaiswal, Age. 41 years, Occ. Business, R/o. Shahabazar, Aurangabad. 3. Rajeshwar s/o. Dwarkaprasad Jaiswal, Age. 39 years, Occ. Business, R/o. Town Center, CIDCO, Aurangabad. 4. Smt. Belarani w/o. Gajendrakumar Mahajan Age. 45 years, Occ, Household, R/o. Shastri Ward, College Road, Narsinghpur (M.P.). 5. Smt. Geeta w/o. Ravishankar Jaiswal Age. 37 years, Occ. Household, Bajipura, Jinsi Road, Aurangabad. ( 2 ) 6. Mrs. Saroj w/o. Chandrashekhar Roy Age. 35 years, Occ. Household, R/o. Sandiya Road, Pipariaya, Dist. Hoshangabad (M.P.). 7. Kailash s/o. Nanasaheb Pawar, Age. 34 years, Occ. Business, R/o. N-5, CIDCO, Aurangabad. 8. Ravindra Shamrao Murkute, N-11, Hudco, Aurangabad. 9. Pravin Pandurang Chavan, At – Sultanpur, Tq. Khultabad, Aurangabad. 10. Anil Devidas Baviskar, N-11, 74/4, Subhashchandra Bose Nagar, Hudco, Aurangabad. 11. Sow. Shantabai Laxmanrao Wagh, At Savli, Tq. & Dist. Buldhana. 12. Ramkrishna Bapurao Kawale, At Phulambri, Dist. Aurangabad. 13. Jyotiram Eaknath Jadhav, Bajajnagar, Waluj, Tq. Gangapur, Dist. Aurangabad. 14. Vishwanath Prabhakar Gurav, N-9, L-109/1, Cidco, Aurangabad. 15. Sow. Lilabai Gorakhnath Hulgukh, At Phulenagar, N-7, Cidco, Aurangabad. 16. Pramod Vishwanath Chavan, Khokadpura, Aurangabad. 17. Umakant Shivshankarappa Shivan, N-9, K-16/5, Pawan Nagar, ( 3 ) Cidco, Aurangabad. 18. Abasaheb Suryabhan Jadhav N-11, M-Sector, Hudco, Aurangabad. 19. Shivling Vishwanath Bagle, Deepnagar, N-11, Hudco, Aurangabad. 20. Ashok Shankar Walke, N-9, Pawannagar, Cidco, Aurangabad. 21. Parmeshwar Gangadhar More, N-7, J/3, Plot No. 8, The New Vinayak Krapa Housing Society, Cidco, Aurangabad. Shri V.J. Dixit, Sr. Counsel i/b. Shri N.R. Katneshwarkar, Advocate for the appellant. Shri S.D. Kulkarni, Advocate for respondent No.1 Shri Vaibhav Patil h/f. Shri S.V. Gangapurwala, Advocate for respondent No.2. Shri P.M. Shah, Sr. Counsel h/f. Shri Amol Sawant, Advocate for respondent No.7. CORAM : P.R. BORKAR,J. DATED : 22.09.2009 ORAL JUDGMENT :- 1. This Appeal From Order is directed by the original plaintiff/appellant being aggrieved by refusal to grant temporary injunction against original defendant No.7 by order ( 4 ) dated 17.08.2002, passed on application Exh.5, in Special Civil Suit No. 106 of 2002, by the learned Civil Judge, Senior Division, Aurangabad. 2. Some of the facts giving rise to this appeal admitted at this stage are as under:- . The plaintiff/appellant and respondent Nos. 1 to 6 are sons and daughters of deceased Dwarkaprasad, who expired on 03.08.1992. The mother of appellant/plaintiff and respondent Nos. 1 to 6 (original defendant Nos. 1 to 6) had expired on 18.06.1994. The properties described in plaint paragraph 3 were ancestral properties owned by Dwarkaprasad. Defendant Nos. 1 and 2 sold 30 R land out of Gat No. 18/2 (Survey No. 135), admeasuring 1 Hectare 27 R situated at village Harsool, Tal. & Dist. Aurangabad to respondent No.7 (original defendant No.7) on 23.04.2002. Thereafter, the plaintiff filed suit bearing Special Civil Suit No. 106 of 2003 for partition and separate possession on 30.04.2002. He also filed application Exh. 5 for restraining the defendants from alienating or creating third party interest thereon or changing nature of the suit property. Said application Exh. ( 5 ) 5 was allowed as against defendant Nos. 1 to 3 who are admittedly brothers of the plaintiff. But same was rejected so far as original defendant No. 7 (respondent No.7) is concerned, who was purchaser from original defendant Nos. 1 and 2. Being aggrieved thereby this appeal from order is filed. 3. The defence taken by respondent Nos. 1 and 2, who are original defendant Nos. 1 and 2, as per say filed at Exh. 40, is that the plaintiff has not brought all the properties into the suit for effecting partition. There are certain other properties which are not included in the suit. Moreover, on the basis of Batwara-Patrak (partition deed) dated 04.07.1994, there was partition by metes and bounds and defendant Nos.1 and 2 have accrued rights to Survey No.18/2 in the said partition and therefore they have every right to sell the same. 4. Defendant No. 7 has filed say at Exh.35. He denied the allegations made in the plaint that there was no partition and property is joint. He stated that defendant No. 1 and 2 sold him 30 R land by sale-deed executed on ( 6 ) 23.04.2002. Defendant Nos.1 and 2 have assured him that they were exclusive owners of the portions of Gat No. 18/2 to the extent of 61 R and mutation entry to that effect had been sanctioned. In view of assurance, so also the mutation entry and considering that defendant Nos. 1 and 2 were in possession of the area, he has purchased the same. It is specifically stated that since 1994 the defendants were in possession of said portion of the property. In other words he has taken defence of bona fide purchaser for value without notice. 5. Original defendant Nos. 4 to 6 have filed application Exh.69 for same relief which was claimed by application Exh.5. However, they have not filed any appeal from order. Similarly, defendant Nos. 1 to 3 have not filed any appeal from order. In the circumstances, the question that remains for consideration is whether the order of injunction refused against respondent No.7 by the learned Civil Judge is justified. 6. Heard Sr. Adv. Shri Dixit i/b. Adv. Shri P.R. Katneshwarkar for the appellant, Adv. Shri S.D. Kulkarni for ( 7 ) respondent No.1, Adv. Shri Vaibhav Patil h/f. Adv. Shri S.V. Gangapurwala for respondent No.2 and Shri P.M. Shah, Sr. Counsel i/b. Shri N.R. Katneshwarkar for respondent No.7. 7. It is argued by Shri Dixit, Sr. Counsel, that defendant No.7 has sold only part of the property and not entire property. The property sold to defendant No.7 by defendant Nos.1 and 2 was 30 R which was more than their share in the suit property and injunction as prayed for ought to have been granted against even respondent No.7. 8. On the other hand Shri P.M. Shah, Sr. Counsel drew my attention to the plaint and argued that though as per para 4 of the plaint there is reference to the sale-deed in favour of respondent No.7, no relief by way of declaration was sought regarding said sale-deed and in absence of prayer for setting aside sale-deed or prayer for declaration that the sale-deed is not binding, the plaintiff is not entitled to say that the property sold to respondent No.7 is available for partition. 9. It has come in para 15 of the plaint that defendant ( 8 ) No.1 in the notice stated that he was selling the property on the basis of Batai Patrak. So the plaintiff was aware of the Batai Patrak. My attention was drawn to the say filed by defendant Nos.1 and 2. In para 4 plea was made that the plaintiff has not included four properties including 2 liquor shops, two houses in CIDCO N-1 sector and so the suit is bad for non-joinder. In-fact, as per Batai Patrak, these properties were allotted to the share of the plaintiff and he ought to have included them in the hotchpotch, if he wanted fresh partition. It is also stated in the said say that the plaintiff has acted upon Batai Patrak. In para 11 the circumstances are mentioned in which Batai Patrak came to be executed. It is stated in para 11 that the plaintiff separated from his father and brother in 1986 and he was allotted a country liquor shop for his livelihood by his father. During last days of father, father handed over all gold ornaments to plaintiff and defendant No. 3 to have separate houses for them. Not only that but house property at Shah Bazar was also allotted to defendant Nos. 1 and 2 and thus the properties were already partitioned. In para 15 of the say, it is stated that Gat No. 18/2 out of which, part purchased by defendant No.7, was allotted to defendant Nos. 1 ( 9 ) to 3. The property was sold to defendant Nos. 1 and 2 for reason that adjoining area is of Ambedkar Nagar Zopad-Patti and some leader wanted to make encroachment on the land of the defendants and the defendants were unable to protect the property from said leader. In the circumstances they were compelled to sale property from defendant No.7. So, it is stated that the the property was sold to protect the lands from being encroached by some leader. 10. After death of Dwarkaprasad, as dispute has arisen regarding letter of administration initially filed by deceased Ramdulari and in which after death of Ramdulari, plaintiff and defendant Nos. 1 to 6 were brought on record. The plaintiff objected to issuance of letter of administration. In order to solve said problem amicably, plaintiff and defendant Nos.1 to 3 appointed a Punch Committee consisting of near relatives. After deliberation and discussion of Punchas, plaintiff and defendant Nos. 1 to 6, Bataipatrak was executed by plaintiff and defendant Nos. 1 to 3 in presence of panchas. On the basis of said Batai Patrak, compromise was filed before the Jt. Civil Judge, Senior Division, Aurangabad, in M.A.R.J.I. No. 145 of 1993 ( 10 ) and letter of administration was issued in the name of defendant Nos. 1 and 3. As per said Batai Patrak, country liquor shop of Shah Nagar was allotted to defendant Nos. 1 and 3. Out of said income, 1/3rd income has to be used as common fund and from that fund an amount of Rs. 3000/- was agreed to be paid to defendant Nos. 4 to 6. Similarly, Rs. 1000/- was agreed to be paid from the country liquor shop of the plaintiff. 11. Shri Shah drew my attention to the documents produced with affidavit in reply in Civil Application No. 4926 of 2002. Therein, agreement between plaintiff and defendant Nos. 1 to 3 regarding appointment of panchas for settlling the dispute regarding partition is produced at Exh. R-7. There is also document called ‘partition’ on the bond of Rs.50/-, which is signed by plaintiff and defendant Nos. 1 to 3. Therein, in para 5 (3), it is mentioned that each of the sister was to be given one shop and a trust was to be formed for looking after shops. So, it would be matter of evidence whether such partition was effected. They were some agreed terms. In said Civil Application, there is also mutation certificate dated 03.10.1998, which shows that on ( 11 ) the application of defendant Nos. 1 and 2, mutation was effected on the basis of Batai Patrak. Thus Batai Patrak came into existence, as a result of particular dispute between plaintiff and defendant No.1 to 3 and question will arise whether plaintiff can resile from the same. 12. During arguments, Sr. Counsel Shri P.M. Shah drew my attention to written statement filed by defendant No.7. He argued that prior to filing of the suit, the property was sold to defendant No.7 by defendant Nos. 1 and 2; and as per written statement filed on 14.06.2002, the day on which status-quo was passed for the first time, defendant No.7 had already sold entire 30 R lands purchased by him. However, in the written statement in para 11 the words used are plaintiff has sold part of 30 Gunthas land. Shri P.M. Shah argued that the word should have been ‘parts’ instead of ‘part’ which is a clerical mistake, thereby respondent No.7 wanted to convey that different parts were sold on 23.04.2002 and nothing has remained with defendant No. 7 as on today. 13. After considering the documents on record, it appears that the plaintiff has not challenged the sale-deed ( 12 ) nor he sought any declaration though he was party to the Batai Patrak. Defendant No.7 has come with a case that he is bona fide purchaser for value without notice. The Trial Court while deciding application, in para 23 of the order has observed that the Batai Patrak was produced on record. It was not a registered document. Still it appears that it was acted upon and the property was divided between the brothers from 1994 and they were enjoying their respective shares separately. The mutation was sanctioned in the names of defendant Nos. 1 and 2 and never any objection was raised to the mutation nor any proceeding was filed for cancellation of that mutation entry. The CIDCO authority has also acquired remaining portion of Gat No. 18/2 and compensation is lying with the CIDCO office. Said fact is not denied by the plaintiff and defendant Nos.3 to 6. In para 25 of the order the learned Judge discussed the circumstances under which Batai Patrak (partition deed) was executed. Then, he stated that the total area of the land was 127 Gunthas. The plaintiff has prayed 1/7th share in the plaint. So, each of the brothers and sisters would get 18 Gunths land to their share and therefore as defendant Nos. 1 and 2 have together sold only 30 Gunthas land to defendnant No.7, under the ( 13 ) principles of equity and under provisions of Hindu Law, the purchaser has right to file suit for partition and whatever property was sold to him it can be adjusted to the shares of his vendors. It has been also observed that defendant No.7 has purchased the property at market price. Sr. Counsel Shri P.M. Shah submitted that the price of Rs. 29 lakhs was paid. It is not disputed that defendant No. 7 was put into possession of the property and he sold property by forming plots. Defendant Nos. 1 and 2 have given undertaking to the Court that they would not alienate remaining portion of the property. 14. After having given thought to all circumstances and arguments advanced, in my considered opinion, this is not a case where any interference in the discretion used by the Trial Court is called for. It has also been considered by the Trial Court that the agreement to sell in respect of additional 31 R portion executed by defendant Nos. 1 and 2 in favour of defendant No. 7 was later on cancelled by them. In the facts and circumstances of the case, in my opinion, the discretion is used properly. In the circumstances, the Appeal From Order is dismissed. ( 14 ) 15. In view of dismissal of this Appeal From Order, Civil Application No. 4926 of 2002 does not survive. Therefore, the Civil Application also stands disposed of as such. 16. Today by separate order, Civil Application Nos. 7791 of 2003 and 5044 of 2007 are segregated and directed to be heard separately on their own merits. [P.R. BORKAR,J.] snk/2009/SEP09/ao74.02