1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 43 OF 2007 Parvatibai Namdeo Dige age 46 years, occ. labour & household r/o Tandulja Tq. & Dist. Latur. .. APPELLANT VERSUS 1 Keshav s/o Sadhu Dige age 51 years, occ. agriculturist 2 Dagadu Sadhu Dige age 46 years, occ. agriculturist 3 Kakasaheb s/o Sadhu Dige age 41 years, occ. agriculturist 4 Kashibai w/o Sadhu Dige age 76 years, occ. household 5 Namdev s/o S adhu Dige age 56 years, occ. agriculturist. All r/o Tandulja Tq. & Dist. Latur. .. RESPONDENTS Mr. B.N. Patil, Advocate for the appellant. Mr. Arun Dalal, Advocate holding for Shri V.D. Salunke, Advocate for respondent nos. 1 to 4. Respondent no. 5 served. ===== 2 CORAM : R. M. BORDE, J. DATE : 14 th October, 2009. ORAL JUDGMENT : 1 This is an appeal by original plaintiff raising exception to the concurrent judgments recorded by the courts below. 2 Plaintiff instituted Regular Civil Suit no. 55/2003 claiming decree of injunction in respect of house property bearing Gram Panchayat no. 43 admeasuring East – West 86 ft. and South – North 35 ft. situate at village Tandulja, Tq. Latur. Plaintiff and defendant no. 5 / respondent no. 5 herein are husband and wife. Defendant nos. 1 to 3 are brothers interse and defendant no. 4 is the mother of defendant nos. 1 to 3. Defendant no. 5 is the brother of defendant nos. 1 to 3. Plaintiff contends that she has purchased the suit house out of her own earnings by way of execution of sale-deed on 10-4-1984 from one Rambhau Kulkarni. According to her, defendant nos. 1 to 4 got executed certain fabricated documents from defendant no. 5 and on the basis of those documents defendants are trying to create obstruction in possession over the suit property. Plaintiff as such claims decree of injunction against the defendants. 3 3 Defendant nos. 1 to 4 resisted the suit by filing written statement. According to them, there was partition effected between the brothers in the year 1982 during the life time of their father. In pursuance to the partition effected between the brothers, defendant no. 5 Namdeo was allotted separate share. It is contended that the suit house has been purchased by defendants out of the joint family funds. Defendant Kashibai acquired ownership of the suit house by virtue of sale deed dt. 10-4-1984. She executed sale-deed of the disputed house in favour of defendant no. 3 Kakasaheb on 19-8-2002. Infact, plaintiff and defendant Namdeo have no concern with the suit house. Defendants thus pray for dismissal of the suit. 4 Considering the rival contentions and after receiving the evidence led by the parties, trial court took a view that the plaintiff has failed to substantiate her case and as such dismissed the suit by judgment and decree dt. 3-8-2005. Plaintiff raised challenge to the judgment and decree passed by the trial court by presenting Regular Civil Appeal no. 176/2005 which came to be heard and disposed of by the 2 nd Adhoc Additional District Judge, Latur who was pleased to dismiss the same by judgment and decree dt. 21-7-2006. 4 5 Substantial question of law that arises for consideration in the appeal is : . Whether the judgment and decree passed by the courts below needs to be modified in view of presentation of Regular Civil Suit no. 99/2009 by respondents herein claiming relief of recovery of possession of the suit property ? 6 It was pointed out that defendant no. 3 / respondent no. 3 herein presented suit bearing Regular Civil Suit no. 333/2003 wherein plaintiff Parvatibai and her husband Namdeo are impleaded as defendant. Suit was instituted by defendant no. 3 claiming decree of perpetual and mandatory injunction in respect of the disputed house. Suit presented by respondent no. 3 after proper contest was decreed by the trial court on 24-3-2005. Trial court restrained the plaintiff herein as well as her husband from interfering in peaceful possession of the respondent no. 3 herein in respect of the suit property. Direction was also issued in respect of correction of the record. Appellant herein presented appeal raising exception to the decree passed in Regular Civil Suit no. 333/2003. Appeal came to be heard and disposed of by the 2 nd Adhoc Additional District Judge, Latur who was pleased to allow the same and the judgment and decree passed in favour of respondent no. 3 / defendant no. 3 came to be quashed and set aside. 5 Respondent no. 3 presented Second Appeal no. 144/2007 in this court. However, at the request of the respondent no. 3, appeal was permitted to be withdrawn with a view to present fresh suit seeking relief of declaration of ownership and perpetual injunction. Availing the liberty granted by this court, respondent nos. 3 and 4 have presented fresh suit bearing Regular Civil Suit no. 99/2008 in the court of Civil Judge, Sr.Dn., Latur. Suit presented by respondents herein is for recovery of possession of the suit premises. Plaintiff prayed that the appellant herein and her husband – respondent no. 4 be evicted from occupation of the suit premises and vacant possession of the suit house be delivered to them. Thus, it is abundantly clear that the respondents herein are not in possession over the suit property. The courts below while dealing with the matter were impressed by the decree of injunction passed in favour of respondent no. 3 in Regular Civil Suit no. 333/2003. However, in view of the subsequent developments, it is clear that the respondents are not in possession of the property and possession vests with the appellant and respondent no. 5 together. In these circumstances, second appeal presented by the plaintiff / appellant herein deserves to be allowed. The respondents who have presented separate suit claiming recovery of possession are not entitled to cause interference in possession of the plaintiff without securing appropriate orders and without following 6 procedure prescribed by law. In these circumstances, appeal presented by the appellant is allowed. Respondents are restrained from causing interference in possession of the plaintiff until they seek declaration of their entitlement by following procedure prescribed under law. It is clarified at this stage that passing of decree in favour of the appellant / original plaintiff in the instant appeal which is passed essentially in view of pendency of Regular Civil Suit no. 99/2009 wherein relief of possession is sought for by the respondent shall not be construed as expression of opinion by this court in respect of merits of controversy involved in this appeal. Appeal is thus allowed accordingly. However, in the facts and circumstances of this case, there shall be no order as to costs. ( R. M. BORDE, J.) dyb/office/sa43.07.odt