1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD LETTERS PATENT APPEAL NO. 112 OF 2009 IN WRIT PETITION NO. 3173 OF 2009 WITH CIVIL APPLICATION NO. 6464 OF 2009 Prabhakar s/o Vaijinath Saruk and others ...Appellants Versus The State of Maharashtra and others ...Respondents ALONGWITH LETTERS PATENT APPEAL NO. 113 OF 2009 IN WRIT PETITION NO. 3169 OF 2009 WITH CIVIL APPLICATION NO. 6465 OF 2009 ..... Mr. S.S. Thombre, for the appellant Mrs. R.D. Reddy, A.G.P. For respondents No. 1 to 3 Mr. M.D Shinde, advocate for respondent Nos. 4 and 5 ..... CORAM: S. B. DESHMUKH AND S. S. SHINDE, JJ. DATED: 3RD JULY 2009 PER COURT :- 1 We heard learned counsel Mr. Thombre for the appellants/applicants, 2 learned AGP for respondent No. 1 to 3 and Mr. Shinde, learned advocate for respondent Nos. 4 and 5. None appears for respondent No.6. As of today, we are also not inclined to issue notice to respondent No.6. 2 This Letters Patent Appeal is challenging the order passed in writ petition No.3173 of 2009. In the said writ petition the order passed by the learned first appellate court i.e district Jude, Ambejogai in M.C.A. No. 57 of 2008 was challenged. The present appellant had filed R.C.S. No.135 of 2008 in the Court of C.J.S.D. Ambejogai for declaration and perpetual injunction. The suit has been followed by an application for temporary injunction. Prayer made in the application for temporary injunction was restraining the execution of the decree passed in R.C.S. No.123 of 1976. 2 The appellants in LPA No.113 of 209, were the plaintiffs in R.C.S. No. 134 of 2008 (Anant and Janabai), filed by them in the court of learned C.J.S.D. Ambejogai, District Beed. It appears that present appellants/plaintiffs had filed the said suit against seven respondents/defendants. The defendant No.1 is State, defendant No.2 is theTahsildar, respondent No.3 is the T.I.L.R. Kaij, Tq. Kaij, District Beed and defendant Nos. 4 to 7 are the private individuals. From temporary injunction application, it appears that R.C.S. No. 134 of 2008 is filed by the present appellants original plaintiffs for declaration that they are owners of the suit 3 property and for perpetual injunction. The suit property was bearing survey No. 11/1, 11/AA and 22/A, as described in the said suit and in the application for temporary injunction. An application for temporary injunction was filed in R.C.S. No.134 of 2008 restraining the execution of the decree passed in R.C.S. No.123 of 1976. Temporary injunction is sought against original defendant Nos. 4 and 5 and their father. In other words, two types of temporary injunctions are sought, one for executing the decree passed in R.C.S. No. 123 of 1976 through R.D. No. 17 of 2003 and another temporary injunction is for alleged possession of the appellants/plaintiffs. This temporary injunction application seems to have filed on 17.7.2008. The learned trial court, after hearing the parties i.e. Plaintiffs and defendants, rejected the application for temporary injunction by its order passed on 3.10.2008. The said application for temporary injunction was filed by application Exh.5 in R.C.S. No. 134 of 2008. The said order of rejecting of application for temporary injunction dated 3.10.2008 was challenged before the learned Additional District Judge, Ambejogai, District Beed by filing Misc. Civil appeal No.53 of 2008. The said Misc. Civil appeal was heard by the learned Additional District Judge, Ambejogai, District Beed. After hearing the parties, learned District Judge dismissed the appeal by his judgment delivered on 24.4.2009. The learned District Judge in para 11 of the judgment, recorded some facts i.e. filing of R.C.S. No.123 of 1976, dismissal of the said suit. Appeal filed before the District Judge and the 4 decision of the learned first appellate court. The learned District Judge, ultimately, dismissed the appeal filed on behalf of the present appellants. 3 Both these Letters Patent Appeals are virtually similar in facts. The slight difference is only pertaining to the sale deeds in favour of the plaintiffs. There are two sale instances pertaining to these two Letters Patent Appeals one is dated 11.12.1984 and another dated 3.12.1984. 4 After dismissal of the respective Misc. civil appeals by the learned District Judge, the said order was challenged by filing writ petition Nos. 3173 of 2009 and writ petition No. 3169 of 2009. Both these writ petitions were taken up for admission hearing before learned Single Bench of this Court. The learned Single Bench of this Court heard learned counsel for the parties and by common order disposed of these writ petitions. In para 3 of the common order, the learned Single Bench has observed that the proceedings i.e. R.C.S. No.123 of 1976, R.D. No. 17 of 2003 are not in dispute and has observed that view taken by the court below cannot be termed to be perverse. Learned Single Judge of this Court opined that respondents in the writ petitions cannot be deprived the fruits of decree in R.C.S. No. 123 of 1976 at this stage. The learned Single Bench further opined that issue was only pertaining to grant of injunction. The learned Single Bench with these observations dismissed the writ petitions and has clarified that the 5 observations made by the learned Single Bench as well as by the learned first appellate Court are only concerning the grant/refusal of the temporary injunction. 5 Grant of temporary injunction is a matter of Order XXXIX Rule 1 and 2 of C.P.C. It is a judicial discretion vested with the court to be exercised on the basis of material available on record. Learned counsel Mr. Thombre strenuously urged that appellants/plaintiffs in both LPAs, is/are bonafide purchasers for value without notice. They have acquired title of the property by registered sale deed. R.C.S.No.123 of 1976 was dismissed by the trial court on 31.1.1985. The first appeal filed by the plaintiff therein was allowed by the first appellate court on 31.8.2001. According to him, decree for partition and separate possession, therefore, came to be passed for the first time on 31.8.2001. He, however, fairly concedes that challenge to the said judgment and decree filed by the aggrieved person has been dismissed. However, according to him, considering the dates of sale deed in both the LPAs as 3.12.1984 and 11.12.1984, it can be said that the plaintiffs in both these appeals are bonafide purchasers for value without notice. He also submitted that the plaintiffs in both these LPAs were not parties either to R.C.S. No.123 of 1976 and/or first appeal challenging the decree in that suit nor were party to the second appeal which was carried out to this Court. According to him, therefore, the court below ought to have considered this 6 aspect of the matter and granted injunction in favour of the plaintiffs. He also submit that in the execution petition warrant of possession is issued and the plaintiffs/appellants are likely to suffer irreparable loss and dispossession. 6 As observed by us in foregoing paras, grant of temporary injunction under Order XXXIX Rule 1 and 2 of C.P.C. is a matter of discretion. The Court concern has to exercise the discretion on sound judicial principles. The learned Single Bench of this Court while disposing of two writ petitions by common order, has justifiably considered the issue of grant of injunction. In our view, no case is established for upsetting the order passed by the learned Single Bench. We make it clear that all pleas are left open to the parties to be agitated before the appropriate forum in accordance with the provisions of law, since the suit is pending. 7 We have considered the submission of learned counsel Mr. Thombre that the plaintiff(s) in R.C.S. No. 123 of 1976 were not entitled to seek partition. Since R.C.S. No. 134 of 2008 and 135 of 2008 are pending before the court concern, we do not find it proper to make any observation on this submission in these Letters Patent Appeals. We have clarified that all pleas are left open to the parties to agitate in respective Suits i.e. R.C.S. No. 134 of 2008 and R.C.S. No. 135 of 2008, in accordance with the provisions of law. 7 8 The Letters Patent Appeals and the respective civil applications stand dismissed with no orders as to costs. 9 Authenticated copy of this order is permitted to the parties on their request as per usual procedure. *****