1 ao104.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO. 104 OF 2011 WITH CIVIL APPLICATION NO. 7086 OF 2011 1. Shri. Machindra Krushna Kalamkar, Age: 42 years, Occ: Agri., 2. Shri. Rupchand Krushna Kalamkar, Age: 40 years, Occ: Agri., Both R/o. Bolhegaon, Tq. Nagar, District Ahmednagar. ...APPELLANTS VERSUS 1. Shri. Gopala Krushna Kalamkar, Age: 45 years, Occ: Agri., 2. Smt. Sundarbai Krushna Kalamkar, Age: 77 years, Occ: Agri.,& Household, 3. Smt. Indubai Krushna Kalamkar, Age: 70 years, Occ: Agri., 4. Sou. Chabubai Dattu Watmode, Age: 55 years, Occ: Agri.,& Household, Resp. Nos. 1 to 4 R/o. Bolhegaon, Tq. Nagar District Ahmednagar. 5. Sou. Shobha Raosaheb Satpute, Age: 35 years, Occ: Household, R/o. Sonewadi Road, Kedgaon, Tq. Nagar Dist. Ahmednagar. 2 ao104.11 6. Sou. Sunita Gopala Kalamkar, Age: 27 years, Occ: Agri. & Household, R/o. Bolhegaon, Tq. Nagar, District Ahmednagar. 7. Tarabai Mansub Hiwarde, Age: 52 years, Occ: Agri. & Household, R/o. Golegaon, Tq. Khultabad, District Aurangabad. 8. Proposed Shri Soubhadra Griharachana Sanstha Maryadit Through Shri. Vijaykumar Bapusaheb Borkar, Age: 60 years, Occ: Service, R/o. 8, Pankaj Housing Society, Bhistbag Road, Tq. & Dist.Ahmednagar. 9. Sou. Anuradha Vishwasrao Athare, Age: 52 years, Occ: Agri. & Household, R/o. Mirasmriti, Satbhai Mala, Near Balikashram, Ahmednagar. 10. Chintamani Co-Op. Housing Society Ltd., Through Shri. Rajaram Narhari Deshpande, Age: 45 years, Occ: Agri & Business, R/o. Shivanjali Enterprises, Above Rajlaxmi Traders, Nagar Manmad Road, Savedi, Ahmednagar. 11. Bhausaheb Kanhoji Akolkar, Age: 57 years, Occ: Business, R/o. Hudco Colony, Bagroja, Ahmednagar. ...RESPONDENTS ... Mr. Niteen V. Gaware, Advocate for appellants. Mr. R.N. Dhorde, Advocate holding for Mr. V.R. Dhorde, Advocate for respondent No.9. Mr. A.M. Gholap, Advocate for respondent No.10. ... 3 ao104.11 CORAM: S.S. SHINDE, J. DATE : 27TH SEPTEMBER, 2011 ORAL ORDER : . This Appeal from Order takes exception to the order dated 13-04-2011 passed by the Joint Civil Judge, Senior Division, Ahmednagar below Exhibit-5 in Special Civil Suit No. 231 of 2010. 2. The present appellants filed Special Civil Suit No. 231 of 2010 before the Court of Joint Civil Judge, Senior Division, Ahmednagar. In the said suit, the appellants herein filed application below Exhibit-5. In the said application, in brief the case of the applicants- appellants herein is that, the suit property described in para1A and 1C are the ancestral properties of the applicant and the non applicant Nos. 1 to 5. The father of applicant and non applicant Nos. 1,4 and 5 and husband of the non applicant Nos. 1 and 2 namely Krushna Gopal 4 ao104.11 Kalamkar died on 19-08-2007. As per the Hindu Succession Act, the applicant Nos. 1 and 2 and non applicant Nos. 1 to 5 are legal heirs to the property acquired by the deceased and they become the owner in respect of their respective shares. The non applicant No.1 has sold some ancestral property and he has purchased Sr. No.73/1 at village Neurgaon Tq. Gangapur on 25-05-2005 and 06-10-2005. That property was purchased from the joint family funds ands that property is also ancestral property and joint family property. There was no partition effected between the applicant and the non applicant Nos. 1 to 5. The non applicant No.1 was the Karta of the family. . It is further averred that the father of the applicant and the non applicant Nos. 1,4 and 5 filed one application before Gavkamgar Talathi, and recorded the name of applicant and the non applicant No. 1 to Sr. Nos. 73/1, 73/2 and 78/1. At the relevant time, the applicant Nos. 1 and 2 and the non applicant No. 1 were minor. Their 5 ao104.11 mother was appointed as the guardian and their names were recorded, however, there was no partition effected between the applicants and the non applicant No.1. The non applicant No.1 has taken disadvantage of his separate entry to the revenue record and sold 40R land to the non applicant Nos. 1, 2 Acre land from Sr. No.73/1 to the non applicant No.9, 2 Acre land from Sr. No. 73/1 to the non applicant Nos. 10 and 11. All these transactions were completed the non applicant No.1, without giving knowledge to the applicants, without their prior permission and consent ands therefore those sale deeds in favour of non applicant Nos. 8 to 11 are illegal and having no binding effect. Now, the applicants apprehend that the non applicant Nos. 8 to 11 are likely to alienate the property in which they have share, only with intention to prolong the dispute and to harass the applicants, the non applicants are likely to dispose of the suit properties or create third party interest and therefore, till the decision of the suit, it is necessary to 6 ao104.11 restrain the non applicants from alienating the suit property or to create any third party interest. 3. In reply to the said application, the non applicants therein i.e. respondents herein filed reply at Exhibit-53, Exhibit-58, Exhibit-83 and Exhibit-81 respectively. All the non applicants have contended that there was partition during the life time of Krushna Kalamkar and that partition was effected under Section 85 of the Maharashtra Land Revenue Code. Though the applicant and the non applicants were minor, Krushna had appointed his wife Indubai as their legal guardian. That partition was not denied or challenged by the applicants within one year after they have attained the majority. Therefore, that revenue entries are having binding force and presumptive value. The non applicant No. 1 has sold his share to the non applicant Nos. 8 to 11 and he having every right to dispose of his share to any person as per his will. The applicants have no right to 7 ao104.11 obstruct him from alienating the suit property. It is further averred that by selling the suit property to the non applicant Nos. 8 to 11, the non applicant No.1 has purchased some land at Gangapur Tahasil and he is absolute owner of said property. There is ample evidence to prove that there was partition. Therefore, by way of sale deeds, the non applicant Nos. 8 to 11 are the legal owners, having legal title and they have right to maintain the property, according to their wish. The applicants are not entitled to claim any relief as sought. . It is further averred that the non applicant Nos. 8 to 11 have invested huge amount. The sale deeds were effected in the year 1992, 1995 and now 20 years have passed. They having possession. The defendant No. 9 has obtained N.A. order from the Collector and he created plots. He has invested huge amount in lakh of rupees and if they are prevented from alienating the property, certainly it will cause irreparable loss to them. 8 ao104.11 On the other hand, the shares of the applicants are in tact. Only in the share of non applicant No.1 sold out. In case, if this Court comes to the conclusion that they are having share then the property sold by the non applicant No.1 be allotted to his share and it will not affect any legal injury as claimed by the applicants. Therefore, it is prayed that the application be rejected. 4. The Joint Civil Judge, Senior Division, Ahmednagar framed points for consideration/determination and rejected the application below Exhibit-5 which is impugned in this Appeal from Order by the appellants. 5. Learned Counsel appearing for the appellants submitted that, the trial Court ought to have held that the suit properties as stated in para No.1 of the plaint are the ancestral properties of appellants and respondent Nos.1 to 5 and thus, the appellants have their undivided 9 ao104.11 share in the suit properties as no partition have been effected by metes and bounds. It is further submitted that, the trial Court ought to have held that the father of the appellants, respondent Nos. 1, 4 and 5 namely Krushna Gopal Kalamkar died on 19-08-2007 and the suit properties have been inherited by the appellants and respective respondents being the joint Hindu family properties. It is further submitted that, the trial Court ought to have held that, respondent No.1 being the Karta of family was managing the affairs and has acted in the manner detrimental to the interests of other coparceners and without their consent has alienated certain joint family properties in favour of respondent Nos. 9,10 and 11 and the said transactions being void ab initio are not binding upon the appellants. . Learned Counsel further submits that, the trial Court ought to have held that, the father of appellants and respondent Nos. 1, 4 and 5 had moved an application with the village 10 ao104.11 Talathi and recorded the names of appellants and the respondent No.1 to property bearing Survey No. 73/1, 73/2 and 78/2, and the appellants and respondent No. 1 being minors, their mother was appointed as guardian and there was no partition effected between the brothers interse. It is further submitted that, the trial Court ought to have held that, respondent No.1 taking undue advantage of the separate entries in the record has sold out 2 Acre land from Survey No. 73/1 in favour of respondent Nos. 9 and 2 Acre land in favour of respondent Nos. 10 and 11 and the said transactions were effected by keeping the appellants in dark, which raised suspicion about the secret transaction and in as much as undivided share of appellants being coparceners can not be subjected to possession in favour of transferees unless the property is partitioned. Learned Counsel further submits that, respondent Nos. 9 to 11 being the purchasers of undivided share are not entitled for possession as no partition has been effected and only remedy for said respondent 11 ao104.11 was/is sue for partition of property and ask for allotment of their shares in the suit property. . Learned Counsel for the appellants further submits that, the trial Court ought to have held that respondent No.1 has illegally sold out 40 Are land in favour of respondent No. 8 vide sale deed on 03-08-1984 and at that time, the appellants were minor and could not object the same. It is further submitted that, trial Court ought to have held that respondent No.1 has illegally mutated the lands of good texture in his name and accordingly, Mutation Entry No. 2264 was sanctioned behind back of the appellants but no valid title or ownership has been passed in favour of the respondent No.1 by virtue of said mutation entry. Learned Counsel further submits that, the trial Court erroneously rejected the application for temporary injunction observing that the protection under Section 52 of the Transfer of Property Act is available to the transferees and further has erred in observing that, apparently it 12 ao104.11 appears that, the suit is not filed within limitation. He further submits that, the trial Court has misinterpreted the law laid down by this Hon'ble High Court in the judgment reported in 2010 (5) All M.R. 366. Learned Counsel further submits that, as the temporary injunction has been refused, the appellants have suffered irreparable loss though the appellants have made out a prima facie case and also the balance of convenience tilts in their favour. It is further submitted that, the suit properties were never subjected to partition by metes and bounds and continued to be the properties of joint family. It is further submitted that, the trial Court has passed the order solely on the basis of surmises and conjectures by overlooking the documentary evidence tendered on record. He further submits that, the impugned order is illegal and the trial Court has misread and misconstrued the oral as well as documentary evidence on record. 6. Learned Counsel appearing for the 13 ao104.11 appellants further invited my attention to the reported judgment of this Court in the case of Maharashtra Jeevan Pradhikaran through its Member Secretary and another vs. Lark Construction P. Limited reported in 2005(3) Bom. C.R. 440. He further invited my attention to Para-14 of the said judgment which reads thus : "14. Having heard rival parties, it is needless to mention that interim injunction is issued to maintain status quo existing at the time to institution of the proceedings. The real point which has to be decided, when an application for stay or for temporary injunction is made, whether the subject matter of the suit needs to be preserved. Interim injunction is not be granted by way of final relief at the interlocutory stage. In respect of relief not claimed in the main suit, no temporary injunction can be granted. The purpose of Order 39 is to preserve and protect the interest in the property in suit and to protect the interest of the parties by preserving certain properties till final disposal of the case. It may 14 ao104.11 be suit property, it may be a property which might form part of the security for repayment of a loan or a property on which a charge has been created. No injunction can be granted under Order 39, Rules 1 and 2 where simple recovery of money is involved." . Therefore, learned Counsel appearing for the appellants would submit that, this Appeal from Order deserves to be allowed. 7. On the other hand, learned Counsel appearing for the respondents submits that, the reasons recorded by the trial Court are in consonance with the evidence brought on record. Therefore, this Court may not interfere. It is further submitted that, in case the injunction is granted against the respondents, it will cause irreparable loss to them. Therefore, it is submitted that, Appeal from Order may be rejected. 8. I have given due consideration to the 15 ao104.11 rival submissions. I have carefully perused the grounds taken in the appeal memo, annexures thereto and impugned order passed by the trial Court and I am of the considered view that, the order passed by the trial Court needs no interference. 9. The contention of the appellants is that, when the suit properties were sold/transferred by respondent No. 1 in favour of other respondents, the appellants were minor. In fact, it is admitted position that, the appellants become major in the year 1990 itself. Therefore, belated attempt by the appellants to challenge such sale transactions from 1984 till the year 2006 on various dates, cannot be considered and no urgent orders granting injunction in favour of the plaintiffs can be passed causing prejudice to the interest of the defendants. It is admitted position that, first transaction took place in the year 1984 and last transaction in the year 2006, between which 26 years have been passed. The suit 16 ao104.11 filed by the appellants is in the year 2010. The trial Court has rightly observed that, to challenge the sale deed, limitation is of three years and the suit filed by the appellants is beyond the period of limitation. . Apart from the above, the defendants have filed reply to the application filed by the appellants therein that, they have purchased the property and they wish to develop the said property and for that, they have got N.A. permission from the competent authority. Therefore, in my opinion, at the prima facie stage, the trial Court has rightly considered the balance of convenience and factor of irreparable loss and rejected the application filed by the plaintiffs. 10. The trial Court has rightly placed reliance upon the reported judgment of this Court in the case of M/s. Kachhi Properties vs. Ganpatrao Shankarrao Kadam and Others reported in 17 ao104.11 2010 (5) ALL M.R. 366 and held that, protection under Section 52 of the Transfer of Property Act is adequate to take care of the interest of the appellants. The reasons recorded by the trial Court while rejecting the application for injunction filed by the plaintiffs are in consonance with the evidence brought on record. I do not find any reason or perversity in the findings recorded by the trial Court. 11. In that view of the matter, there is no substance in the Appeal from Order, same stands rejected. Consequently, the Civil Application stands rejected. . However, the trial Court is directed to expedite the hearing of the Special Civil Suit No. 231 of 2010. The trial Court shall make endeavour to dispose of the said suit within six months from the receipt of the order of this Court. [S.S. SHINDE, J.] sut/SEP11