KBP 1468-09.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1468 OF 2009 Vijay Nivrutti @ Balashabe Kashid ..Petitioner Vs. Subhash Ramchandra Jadhav, and ors. ..Respondents WITH WRIT PETITION NO.1458 OF 2009 Vilas Nivrutti @ Balasaheb Kashid ..Petitioner Vs. Subhash Ramchandra Jadhav, and ors. ..Respondents ......... Mr.T.D.Deshmukh, for petitioners (in both petitions). Mr.G.S.Godbole i/b.Mr.Ashok Tajane, for respondents (in both petitions). ......... CORAM : A.S.OKA, J.. DATE : 18 th August, 2009. P.C. : 1] I have heard submissions of learned counsel appearing for the parties on the earlier date. Before appreciating the submissions it will be necessary to refer to the facts of the case in brief. 2] These writ petitions under Article 227 of the Constitution of India challenge the order passed by the District Court in appeals under rule 1(r) KBP 1468-09.sxw 2 Order XLIII of the of the Code of Civil Procedure, 1908. The petitioners filed suits for declaration and injunction. The learned trial Judge has allowed the applications for temporary injunction filed by the petitioners in the said suits and granted injunction against the respondents restraining them from disturbing the possession of the petitioners over the suit property. These were more or less identical suits filed by the petitioner in Writ Petition No. 1468 of 2009 and the petitioner in Writ Petition No.1458 of 2009. Identical orders of injunction were passed in their favour. There were two appeals filed by the respondents. By the impugned common judgment and order delivered in the two appeals, the orders of temporary injunction passed by the trial court have been set aside by the appellate Court. 3] For the sake of convenience, a reference is being made to the facts of the case in Writ Petition No.1458 of 2009. It is not in dispute that the decision in the said writ petition will govern the writ petition No.1468 of 2009. One Mohanlal and Chandulal were holding the lands bearing Gat No.104 which is situated at Village Kharpudi, Taluka Khed, District Pune. Said Mohanlal died. Nandubai (widow) and Narendra (Son) are the legal representatives of deceased Mohanlal. A part from the said land bearing gat No.104 was acquired by the State Government. After the acquisition, a portion admeasuring 4 H 59 A remained which was numbered as Gat No.104/A. According to the case of the petitioner, on 4th February, 1984 the said KBP 1468-09.sxw 3 Nandubai and Narendra executed an agreement for sale dated 4 th February, 1984 in his favour in respect of southern portion of Gat No.104/A admeasuring 1 H and 93 A. The present petitioner in the year 1990 filed a suit for performance of the said agreement. In the year 1996, the said suit was decreed. The trial Court held that the said Narendra and Nandubai were entitled to one half share in the land gat No.104-A and the said Chandulal was held entitled to remaining one half share. Therefore, the learned Trial Judge passed a decree for partition and separate possession of one half share of the said Narendra and Nandubai. The decree further directed that on obtaining possession of half share on the the partition, the said Narendra and Nandubai will execute a registered sale deed in respect of area of 1 H and 93 Are in favour of the petitioner. An appeal was preferred by Narendra, Nandubai and Chandulal against the said judgment and decree. It must be noted here that during the pendency of appeal, on 7 th February, 2000 Nandubai and Narendra executed a registered sale deed in favour of the petitioner in respect of said area of 1 H and 93 Are which was the subject matter of the agreement for sale dated 4 th February, 1984 in respect of which the decree was passed by the trial Court. The appeal preferred by Narendra, Nandubai and Chandulal was allowed by the District Court by judgment and order decree 13 th September, 2000. By setting aside the decree for specific performance, the District Court passed a decree of KBP 1468-09.sxw 4 refund of earnest amount with interest thereon. As far as the suit for specific performance is concerned, it appears that the matter rested there and the decree of the District Court was not subjected to further challenge. It must be noted here that on 7 th February, 2000 on agreement for sale in respect of remaining southern portion of Gat No.104 A admeasuring 36-5 Ares was executed by the said Nandubai and Narendra in favour of the petitioner in writ petition No.1468 of 2009. 4] The said Chandulal on 11 th February, 2000 sold northern portion of Gat No.104 having an area of 1 H and 75.5 Ares in favour of second respondent Ashok and an area of 54 Ares in favour of first respondent Subhash. The said Chandulal purported to sell entire southern portion of Gat No.104 admeasuring 2 Hectors and 29 Ares to 3 rd respondent Kisan and one Vasant Jadhav. 5] Chandulal had filed a suit in the year 1985 against the petitioner, Nandubai and Narendra for declaration of title and for injunction. The said suit was dismissed and Chandulal preferred an appeal before the District Court. The appeal was dismissed by the District Court. While dismissing the appeal, the District Court held that said Chandulal had one half share in the gat No.104-A and Nandubai and Narendra were entitled for remaining one half share. The District Court noticed that Chandulal alienated northern side half portion. It was observed that even the said Nandubai and Narendra KBP 1468-09.sxw 5 alienated their half share in favour of petitioner. On the aforesaid ground, the District Court dismissed the appeal. Thereafter, a second appeal preferred by the said Chandulal has been dismissed. Thereafter, present suit has been filed by the petitioner claiming declaration and injunction against the said purchasers who are claiming through the said Chandulal. The declaration and injunction is claimed on the basis of sale deed dated 7 th February, 2000. Similarly, the petitioner in Writ Petition NO.1468 of 2009 filed a suit for injunction on the basis of the agreement for sale dated 7 th February, 2000 executed in his favour by Nandubai and Narendra in respect of an area of 36.5 Ares. The Trial Court granted temporary injunction in favour of the petitioner. The District Court allowed the appeal preferred against the impugned order. By the impugned order, the learned District Judge held that Chandulal as well as Nandubai and Narendra were in joint possession of land Gat No.104-A and the petitioner has failed to prove that Nandubai and Narendra were in actual possession of the specific portion of the land which is purchased by the petitioner. The learned Judge relied upon the deposition of the parties recorded in a Criminal Case. The learned Judge observed that Nandubai and Narendra had not obtained possession of any particular portion of the property which was jointly held by them with Chandulal, and therefore, the petitioner could not be in possession. 6] The learned counsel appearing for the petitioner in support of the KBP 1468-09.sxw 6 petitions submitted that the suit filed by Chandulal for injunction was dismissed and the dismissal of the suit has been affirmed by this Court. He invited my attention to the decision of the District Court as well as the decision of this Court arising out of the suit filed by said Chandulal. The learned Counsel appearing for petitioner submitted that in the agreement for sale dated 4 th February, 1984 executed by Nandubai and Narendra in his favour it is mentioned that the possession of the property subject mater of agreement was handed over to the petitioner. He submitted that the concluded finding as against Chandulal is that he had only one half share in Gut No.104-A. He submitted that the petitioner has taken one half portion out of gat No.104/A which is on the southern side and the said Chandulal has purported to sale northern one half portion of Gut No.104-A to the first and second respondents on 11 th February, 2000. He, therefore, submitted that after the sale of northern portion constituting his one half share, the said Chandulal could not have claimed right, title and interest in respect of share of Nandubai and Narendra, which has been purchased by the petitioner. He pointed out that the sale was effected by Chandulal during the pendency of an appeal arising out of the suit filed at by him and after selling his one half share, the said Chandulal did not amend the plaint. He submitted that Chandulal as well as predecessors in title of the petitioners were in possession of the distinct portions of the property bearing Gat No.104A and KBP 1468-09.sxw 7 they have sold the respective distinct portions to the petitioner and to the respondents respectively. He, therefore, submitted that by no stretch of imagination, the appellate Court could have held that the petitioner was not in possession. He submitted that the said Chandulal, the predecessor of the respondents could not succeed in the suit for injunction which was filed against the respondents as well as against predecessors in title of the petitioner. He submitted that only on the basis of alleged admission of a witness recorded in a criminal case, a finding on the aspect of possession could not have been recorded against the petitioner. He, therefore, submitted that the District Court has committed an error. 7] The learned counsel appearing for the respondents submitted that even in the suit for specific performance filed by the petitioner, he could not succeed in proving that he was placed in possession of the suit property in part performance of the agreement for sale and the decree passed in his favour of specific performance has been set aside. He relied upon the admission of the witnesses examined in the criminal trial and submitted that the said admissions show that the petitioner was not in possession. 8] The learned counsel appearing for the petitioner submitted that there was no occasion for the petitioner to challenge the decree in as much as during the pendency of the appeal against the decree for specific performance, there was a sale deed executed in favour of the petitioner and KBP 1468-09.sxw 8 the said sale deed confirms the possession of the petitioner. 9] I have carefully considered the submissions. It must be noted here that as of today the the admitted position appears to be that the said Nanubai and Narendra had one half share in the land bearing gut No.104-A admeasuring 4 H and 59 Are and the said Chandulal had one half share therein . The case of the petitioner is that he has been placed in possession of the suit property by Nandubai and Narendra on the basis of an agreement for sale executed on 4 th February, 1984. In the agreement dated 4 th February 1984 it is recorded that in part performance of agreement dated 4 th February, 1984, the petitioner was placed in possession of the property the subject matter of the agreement. The sale deed also refers to the decree for specific performance passed in favour of the petitioner in the year 1996. Clause 9 of the sale deed records that the sale was being executed in accordance with agreement dated 4 th April, 1984 and the decree passed in the suit for specific performance. 10] At this stage it will be necessary to refer to the judgment of the trial Court in the suit for specific performance filed by the petitioner to which not only his vendors but said Chandulal were made parties. In the said suit the trial court passed a decree holding that Nandubal and Narendra were entitled to one half share in land gat No.104-A. The trial Court passed a preliminary decree of partition by directing that the partition shall be effected in KBP 1468-09.sxw 9 accordance with Section 54 of the Code of Civil Procedure of the said one half share. The decree directed that after obtaining possession of half share of gat No.104-A, the said Nandubai and Narendra shall execute a sale deed in favour of the petitioner. It will be necessary to refer paragraph 20 the the judgment. A specific finding has been recorded that there was no earlier partition between Mohanlal and Chandulal. After recording the said finding regarding the absence of partition, the learned trial Judge proceeded to pass a decree for partition and directed that only after possession of separate one half share of Nandubai and Narendra was obtained, a sale deed shall executed by them in favour of the present petitioner. Perusal of the judgment in appeal against the said decree preferred by Narendra, Nandubai and Chandulal shows that there was no cross-objection or cross-appeal filed by the petitioner for challenging the decree for partition. As stated earlier, during the pendency of appeal, a sale deed was executed in favour of petitioner which clearly recites that the sale was executed in terms of the earlier agreement for sale and the decree for specific performance passed by the trial Court. While allowing the appeal, the learned District Judge held that the petitioner has failed to prove that he has received the possession of the suit property under the agreement for sale. The decree of the Appellate Court was not challenged by the petitioner. 11] It is true that during the pendency of appeal against the decree of KBP 1468-09.sxw 10 specific performance, the petitioner obtained a sale deed from Nandubai and Narendra. The sale deed was on the basis of the agreement for sale and the decree passed by trial Court on specific performance. Even the said decree for specific performance proceeds on the assumption that the petitioner was not placed in possession. As per the decree, the vendors of the petitioner were under an obligation to execute a sale deed only after a partition was effected and their one half share was separated. The said decree was not challenged by the petitioner. It is not the case of the petitioner that after the said decree was passed, at any point of time, a partition was effected between Chandulal on one hand and Narandra and Nandubai on the other hand. As of today, in his own suit, there is a finding against the petitioner that he was not placed in possession of the property which is purportedly sold in his favour by Nandubai and Narendra. It is true that Chandulal did not succeed in his suit for injunction. But even in the said suit there is no finding in favour of the petitioner that his predecessors were in separate possession any specific portion of Gat No.104-A. 12] In absence of any evidence of partition being effected between Chandulal on one hand and Nandubai and Narendra on the other hand, the petitioner who claims to have purchased the half share of Nandubai and Narendra cannot claim to be in possession of any specific portion of the suit property. It is true that the sale deed was executed in favour of the petitioner KBP 1468-09.sxw 11 in respect of the southern portion of the property and the sale deed executed by Chandulal in favour of defendants/respondents relates to the northern portion of property. However, in absence of partition, the petitioner cannot be claim to be in possession of any specific portion of land bearing gat No.104- A. In the circumstances, no fault can be found with the appellate court when it declined to grant equitable relief of injunction in favour of petitioner. The petitioner could not establish his exclusive possession. Hence, no case is made out for interference in this Writ Petition under Article 227 of the Constitution of India. 13] Writ Petitions are rejected. It is made clear that the observations made in this order are for a limited purpose of testing the legality and validity of order declining to grant temporary injunction. All contentions of the parties in the suit are expressly kept open and the suit shall be decided on its own merits. 14] At this stage, the learned Counsel appearing for the petitioner prays for continuing the ad-interim relief. The said prayer is opposed by the learned counsel for the respondents. The Ad-interim relief is operative from 19 th January, 2009. Considering the facts and circumstances of the case, the said ad-interim relief shall continue to operate for three months from today. ( A.S.OKA, J. )