1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.7444 of 2009 Shri Machindra namdev Hanwate & Anr ... Petitioners versus Smt.Yashoda Davba Matre & ors. ... Respondents ... Mr. I.S.Thakur for the petitioners Mr.H.K. Meghnani for respondent no.1. CORAM : D.G. KARNIK, J. DATED : 1st July 2010 P.C. 1. By this petition, petitioner challenges the judgment and order dated 1 July 2009 passed by the Adhoc District Judge – 2, Solapur, allowing the appeal of the respondent no.1 and thereby vacating the injunction granted by the trial court. 2. The petitioners are the sons of Namdev Hanwate who was the original owner of the property. Respondent no.2 is the third son of Namdev. Respondent no.1 is the purchaser of the suit property. Namdev was the owner of the property bearing Gat No. 2 167/3 admeasuring 2 Hectares 40 R. By a sale deed dated 18 August 2006, respondent no.2 sold 1 Hectar 60 R forming eastern portion of Gut No.167/3 (for short “the suit property”) to the respondent no.1 alleging it to be his self acquired property. The petitioners filed a suit challenging the alienation and claiming partition of the suit property and other properties belonging to the family. They alleged that despite the sale, the petitioners were in possession of the suit property and therefore claimed an injunction restraining the respondent no.1 from disturbing their possession. The trial court granted the injunction. The lower appellate court vacated it. Aggrieved petitioners are in this court. 3. Suit property being eviction portion of Gat no.167/3 was previously sold by the family of Namdev. By a registered sale deed dated 17 November 2000 the petitioner no.2, and the respondent no.2 sold it to Yeshwant Dikhale and Hanumant Dikule who in turn sold it to one Shobha Madan Salunke. The suit property, thus, ceased to be the family property in the year 2000 itself. Thereafter, respondent no.2 purchased the suit property from Shobha Madan Salunke by a registered sale deed dated 3 July 2006. Thus the suit property became the self acquired property of respondent no.2 who had purchased the same by a registered sale deed from Shobha Madan Salunke. 4. Mr.Thakur, learned counsel for the petitioner submitted that respondent no.2 had purchased the property out of the joint family 3 funds and therefore, the suit property continued to be the joint family suit property and respondent no.2 had no authority to sell it without the consent of others. There is no evidence produced by the petitioners to show that the suit property was purchased by respondent no.2 from the funds of the joint family. The purchase deed was in the individual name of respondent no.2. The burden of proving that the suit property was purchased by respondent no. 2 out of the joint family funds is on the petitioners and presently there is no material on record to show that the joint family funds were used by him for the purchase. In the circumstances, prima facie, the respondent no.2 was the owner of the suit property and had prima facie authority to sell the same to the respondent no.1. 5. The suit was for partition and setting aside the alienation made by respondent no.2 in favour of respondent no.1. In the absence of any material contrary to the recital of the possession having been delivered by the vendor (respondent no.2) to the purchaser (respondent no.1) made in the sale deed, the recital was believed by the lower appellate court. I see no error in the view taken by the lower appellate court that, prima facie, the respondent no.1 was in possession of the suit property. 6. Mr.Thorat, learned counsel for the petitioner relying upon a decision of the Hon’ble Supreme Court in Dorab Cawasji Warden Vs. Coomi Sorab Warden & ors, 1990(2) Bom.C.R. 614 submitted that the possession of joint property could not have been delivered 4 by respondent no.2 to the respondent no.1. It is true that in Warden’s case, the Supreme court has so held and has even granted a mandatory injunction for directing removal of the purchaser who had taken possession of the property from only one co-owners without the consent of other co-owners. However in the present case, as I have held that, prima facie, the respondent no.2 was the sole owner and not a co-owner or a co-parsner. Hence, the decision in the case of Warden (supra) has no application to the facts of the case at hand. So also, the decision of the Hon’ble Supreme Court in M.V.S.Manikayala Rao Vs. M. Narasimhaswami 1966 SC 470 relied upon by the learned counsel for the petitioner has no application to the facts of the case. 7. There is no merit in the writ petition which is hereby rejected summarily. (D.G. KARNIK,J.)