1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa APPEAL FROM ORDER NO. 629 OF 2010 1) Smt. Laxmibai Ramkrishna Pate, ] Age – 65 years, Occu.-Housewife. ] ] 2) Shri.Deepak Ramkrishna Pate, ] Age – 43 years, Occu.- Agricultural ] & Business, ] .. Appellants Both Residing at : ] (Org. Plaintiffs) Room No. 21, Ground Floor, ] Gulam Mohammed Building, ] Navraji Hill, Road No.7, Dongari, ] Mumbai 400 009. ] VERSUS 1) Smt. Kondabai Dattatrya Dumbre, ] Age – 60 years, Occu.-Housewife, ] Residing at - Narayanwadi, ] A. P., Narayangaon, Tal.-Junner, ] District-Pune, Pin No. 410 504. ] ] 2) Smt. Kamal Jagannath Mule, ] Age – 58 years, Occu.-Housewife, ] R/at. A.P., Narayangaon, ] Behind Grampanchayat Office, ] Tal-Junner, District – Pune, ] .. Respondents Pin No. 410 504. ] (Org. Defendants) ] 3) Smt. Leela Pandurang Temkar, ] Age – 56 years, Occu.-Housewife, ] R/at. Shivadarshan Co-Operative ] Housing Society, 2nd Floor, ] Bhatwadi, R.B.Kadam Marg, ] Near Rupal Industrial Estate, ] Ghatkopar (west), ] 2 Mumbai – 400 086. ] ] 4) Shri Sayaji Ganpat Pate, ] Age – 48 years, Occu.-Agricultural, ] R/at. Agaskand, Near Crusher ] Machine, Pune Nasik Highway, ] A.P., Narayangaon, Taluka-Junner, ] District Pune- 410 504. ] ] 5) Smt. Sushila Haribhau Vite, ] Age – 54 years, Occu.-Housewife, ] R/at. Vite Building, Muktabai ] Mandir Road, A.P., Narayangaon, ] Taluka-Junner, Dist. Pune -410 504. ] ] 6) Shri. Shivaji Maruti Wayal, ] Age – 64 years, Occu.-Agricultrual, ] R/at. Bhalgat Building, ] Near Ram Mandir, A.P.,Narayangaon] Tal.-Junner, District Pune – 410 504.] .... Mr. A. V. Anturkar a/w. Mr. Sugandh Deshmukh & Mr. Vipin Kasle for the Appellants. Mr. R. D. Soni i/b. M/s. Ram & Co. for the Respondents. .... CORAM : R. C. CHAVAN, J. RESERVED ON : JUNE 24, 2010. PRONONUNCED ON : JULY 5, 2010. JUDGMENT :- This Appeal is directed against the order passed by the learned Civil Judge, Senior Division, Pune, rejecting appellant's 3 application Exhibit 5 and 37 for an injunction to restrain respondents (defendant Nos. 1 to 6 in Special Civil Suit No. 1813 of 2009) from obstructing appellants/plaintiffs possession of Survey Nos. 364/1 and 364/2 at Narayangaon, Taluka Junner, District Pune, and from creating any third party interests during the pendency of the Suit. 2. By consent of parties the Appeal was taken up for final hearing at the admission stage. 3. The facts which are material for deciding this Appeal are as under :- The properties which are subject matter of this Appeal were undisputedly owned and possessed by Mr. Sakharam Pate. The question whether the properties were self acquired or ancestral properties of Sakharam Pate cannot be gone into at this stage, since it will have to be decided after evidence is tendered. Sakharam had three natural daughters who are respondent Nos. 1 to 3 (defendant Nos. 1 to 3). He adopted one Ramkrishna, who was married at that time, as his son by a registered adoption deed 4 dated 6th June, 1966. Sakharam died on 28th November, 1966. Sakharam's widow Rahibai died on 6th May, 2007. Thus far there is no dispute. 4. According to the plaintiffs, soon before Sakharam's death on 28th November, 1966, on 10th November, 1966 Sakharam had willed the properties to Ramkrishna. This will was registered on 15th November, 1966. This is not admitted by defendants. According to the defendants, the properties of Sakharam were partitioned amongst Ramkrishna (adopted son), Rahibai (widow) and three daughters (defendant Nos. 1 to 3) on 31st December, 1978 in presence of two witnesses and a writing to that effect was made. 5. Ramkrishna died on 26th April, 1985 leaving behind widow Laxmibai (plaintiff No.1), Son Deepak (plaintiff No.2) and daughters Kalpana and Aruna (who are not parties to the proceeding). 6. While plaintiffs claimed to have been in possession in view of the will dated 10th November, 1966, defendants claim that 5 parties were in possession of properties as per partition dated 31st December, 1978. One of the properties owned by the family, F. S. No. 523 was subject matter of acquisition proceedings and was released from acquisition proceedings as on application made by plaintiff No. 2 Deepak, on his claim that in partition dated 31st December, 1987, 7A 13G land had come to his share, 83G land came to the share of plaintiff No.1 Laxmibai and 7A 24G each had gone to the share of defendant Nos. 1 to 3. This documents of partition seems to have been produced before the Additional Commissioner as can be seen from his order dated 26th November, 2001. The order recites that F. S. No. 364/1 and 364/2, which were in the name of Deepak (plaintiff No.2) were not included in command area. 7. According to plaintiffs, no such application was made by plaintiff No.2, and, respondent's son, advocate Pradeep Muley was in fact looking after the proceedings. Plaintiffs claims to have approached Hon'ble Minister for Revenue against the order passed by the Additional Commissioner, though the order is in favour of plaintiff No.2, which application is stated to be still pending. 6 8. Sakharam's widow Rahibai and defendant No.2 Kamal applied on 23rd February, 2006 to Tahsildar for mutation of suit properties in their names on the basis of partition deed dated 31st December, 1978. Tahsildar rejected the application on 10th August, 2006. Defendant Nos. 1 to 3 applied to S.D.O. who allowed the Appeal on 23rd January, 2009 and directed that names of defendant Nos. 1 to 3 to be recorded. Plaintiffs filed a second R.T.S. Appeal No. 44 of 2009 against S.D.O's order which was dismissed by the Collector on 24th September, 2009 and on 6th October, 2009 names of defendant Nos. 1 to 3 were recorded in revenue record. On 12th December, 2009, plaintiff challenged this order by preferring revision before the Additional Commissioner, who, on 16th December, 2009 restrained defendants from creating third party interest. Plaintiffs then filed the suit on 14th October, 2009 from which present Appeal arises. Application Exhibit 5 for temporary injunction was filed by plaintiffs on 29th October, 2009. Defendant Nos. 1 to 3 transferred the property S. No. 364/1 and 364/2 by registered sale deed to defendant Nos. 4 to 6. Plaintiffs claim that thereafter their possession was sought to be disturbed. The plaintiff therefore filed application Exhibit 37 for a further injunction and also added defendant Nos. 4 to 6 as parties to the 7 suit. 9. Respondents contested the application by filing reply. According to respondents :- (i) The properties in question were ancestral and not self acquired properties of Sakharam, (and therefore could not have been willed to Ramkrishna). (ii) Ramkrishna was already married at the time of alleged adoption and there is no reference to adoptive mother Rahibai in the adoption deed dated 6th June, 1966. (iii) There was a partition of properties on 31st November, 1978. (iv) This partition was relied on by the plaintiff for getting property S. No. 523 released from 8 acquisition. (v) Therefore since plaintiffs and defendant Nos. 1 to 3 form a joint family, injunction against defendant Nos. 1 to 3 cannot be claimed, therefore, they prayed for dismissal of plaintiff's application. 10. After hearing the parties, the learned Judge passed the impugned order rejecting plaintiffs application. Aggrieved thereby plaintiffs are before this Court. I have heard the learned counsel for the parties. Though, the order may give an impression that the learned Judge was refusing “ad-interim injunction”, the tenor of the order shows that it was passed after hearing the parties and thus what was refused was “interim injunction”, after considering merits, though observation by the learned Judge is to the contrary. 11. Now, coming to the merits of the matter. The defendants may not be able to question adoption of Ramkrishna by Sakharam now, if they want to rely on partition deed dated 31st December, 1978, which acknowledges Ramkrishna as son of 9 Sakharam. The partition dated 31st December, 1978 is however not shown to have been acted upon or referred to by any of the parties till 26th November, 2001, when it was referred to in the order passed by Additional Commissioner for exclusion of land S. No. 523 from acquisition. First applications for recording their names in revenue record were made by defendant Nos. 1 to 3 (and even their mother Rahibai) only in 2006. Till then the properties continued in the name of Ramkrishna and after him the plaintiffs. Even in the applications by Rahibai on 23rd February, 2006 and by Kamal dated 27th March, 2006 to the Tahsildar, partition deed dated 31st December, 1978 was not refereed to and there is no claim by the sisters that their name should be mutated in record of S. Nos. 364/1 and 364/2 which had allegedly come to their share in the partition. The prayer was for recording their names in revenue records of all fields. It is also not referred to in Memo of Appeal to the S.D.O., though in his order dated 23rd January, 2009, the partition deed is referred to. Though the initial prayer of defendant Nos. 1 to 3 was to include their names in record of right of all fields left behind by Sakharam, the S.D.O. in appeal ordered exclusion of five fields from mutation entry 19623 and 23893 and record them in the names of defendant Nos. 1 to 3. 10 While doing so, the S.D.O. too observed that plaintiffs had relied on partition deed dated 31st December, 1978 for exclusion of their land from acquisition. 12. The learned counsel for the appellants pointed out that appellants had not referred to any partition deed dated 31st December, 1978 in their application for exclusion of land S. No. 523 from acquisition. Reason for seeking exclusion was not partition between plaintiffs on one side and defendant Nos. 1 to 3 on the other. Partition referred to in application dated 11th January, 2000 was between plaintiffs interse. The applicants have already approached the Revenue Minister against observations about partition dated 31st December, 1978 in Commissioner's order dated 26th November, 2001. 13. The learned counsel for respondents submitted that after having been benefited by the said order passed on account of partition, plaintiffs cannot be allowed to turn around. 14. The only reason that seems to have prevailed upon the learned trial Judge in relying to the partition is the impression 11 gathered by him that the appellants took advantage of the said partition in order to get the land, Survey No. 523, released from acquisition. A look at the order passed by the Commissioner would show that the reason for exclusion of Survey Nos. 364/1 and 364/2 from the holding of the appellants was not that they had gone to the respondents in partition, but that they were not in the command area. The learned judge should have also seen that in the application made before the Commissioner, the appellants had not set up the case that their lands were liable to be excluded because of reduction in their holding on account of partition. He should have seen that it was probable that the appellant's cousin, who was an advocate and who is son of one of the respondent's and who was looking after the litigation, could have raised the partition theory in the order of the Commissioner. Thus, the case of the appellants that the appellants were in possession of the property could have been accepted by the learned trial Judge. He should have seen that the alleged partition of the year 1978 did not at all surface for at least 22 years. There is nothing on record to show that the respondents had, at any point of time, sought entry of their names in the record of the property, on the basis of partition. 12 15. In view of this, the learned Judge should have seen that the appellant's claim of the possession of the fields in question was at least, prima facie, indefeasible. In the light of the foregoing, it cannot be said that the learned trial Judge correctly concluded that the appellants had not made out a prima facie case. In view of this, he ought to have restrained the respondents from disturbing the appellant's possession in respect of fields, survey Nos. 364/1 and 364/2. 16. As far as creating third party interest is concerned, provisions of Section 52 of the Transfer of Property Act are sufficient to take care of apprehension of the appellants. The appellants have not shown as to why, in addition to the statutory protection afforded by section 52 of the Transfer of Property Act, the appellants need a further injunction from the Civil Court to restrain the respondents from creating any further interest in the property. Appellants could, if they so desire, register the lis so as to put third parties, to the notice that the property is the subject matter of a dispute before a Civil Court. It has to be noted that a Civil Court should ordinarily not put any restrictions on enjoyment of property by any one till the lis is finally decided or during the 13 pendency of the lis, unless it is shown that the litigation could be rendered infructuous, if a preventive order is not passed. 17. In view of this, the Appeal is partly allowed, the impugned order is set aside, and the respondents are restrained from disturbing the appellant's possession over the fields, survey No. 364/1 and 364/2, till the disposal of the suit. [ R. C. CHAVAN, J. ]