1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.34 OF 2009 1) Suhas Sugandilal Bora & 2 Ors. - APPELLANTS VERSUS 1) Smt.Anandibai w/o Shantilal Chhallani & 24 Ors. - RESPONDENTS ***** Mr.RR Mantri,Advocate for Appellants; Mr.PV Barde, Advocate for Resp.Nos. 1 to 4; Mr.NV Gavare, Adv. for Resp.Nos. 5 to 9, 11, 12, 14 to 25 Mr.VS Bedre, Advocate for Resp.Nos 10A to 10C; Mr.RN Dhorde, Adv. h/for Mr.YV Kakde, Adv. for Resp.No.13. ----- CORAM : K.U.CHANDIWAL,J. DATE : 23rd DECEMBER,2010. PER COURT: 1) Heard finally. 2) The appellants with Respondent Nos. 5 to 25 are defendants in Special Civil Suit No. 227/2004 while the respondent nos.1 to 4 are the plaintiffs. 3) The controversy revolves to the share in the immovable property, subject of sale-deed dated 30th May, 2002, executed by the Respondent Nos.1 to 4 (plaintiffs) in favour of the appellants and Respondent Nos.5 to 25. 2 4) Though several submissions are advanced, including whether the Court, in a on-going litigation, is competent to clamp injunction against the plaintiff at the behest of the defendant. 5) The Position of law in terms of Section 94 and Order 39 Rule 1(a) of CPC was tried to be explained. 6) The very script/Scheme of both the provisions, in unmistakable terms, illustrate, by virtue of sub-clause (a) of clause 1 of Order 39 of CPC, it is, any party, which in its compass includes defendant, to seek a restrain against plaintiff in the parameters of sub-clause (a) of clause 1 of Order 39 CPC. This is even so illustrated in Section 94 sub-clause (3) sub- clause (c) thereof. 7) In order to substantiate such contention, learned Counsel for the appellants has placed reliance to the judgment of this Court in the matter of Nanasaheb s/o Sakharam Bhalekar Vs. Dattu s/o Dhondiba Bhalekar and Ors. - 1991 Mh.L.J. 685, wherein the learned Single Judge of this Court, in tune with the legal position indicated above, held that there can be clamp of injunction in terms of Rule 1(a) of Order 39 of CPC against the plaintiff. The view of this Court is, to be seen in the judgment of Kerala High Court, reported in AIR 1989 Kerala 81 and 3 also in subsequent judgment of Kerala High Court, reported in 1995 Kerala 74 – (Sathyabhama Amma Vs. Vijaya Amma). 8) The contention of Mr.Dhorde, the learned Counsel for the respondents, that the pronouncement in the matter of Rohit Singh & Ors. Vs. State of Bihar (now State of Jharkhand) reported in AIR 2007 SC 10 would desist for clamping any injunction against the defendant in the proceedings is not depicting the correct position. The matter of Rohit Singh revolves to rights of a defendant, concerning a counter-claim in terms of Order VII Rule 6A, 6E; its maintainability and the reliefs flowing therefrom. 9) In the above back drop, I hold that the appellant has competence to claim injunction against Respondents, however, it would be restricted to the infraction illustrated under sub-clause (a) of Rule 1 of Order 39 of CPC. 10) The description of the property, in the sale-deed clause 4 thereof, in unmistakable terms, accept that the plots are individually owned though the sale-deed is executed jointly as the property was not developed into a non- agriculture (NA) user. Even open space or amenity or the access are to be treated to be jointly owned by the owners(appellants and Respondent Nos.5 to 25). The specific area 4 earmarked for the appellants is 530, 626.72, 604.64 and 629.82 sq.meters respectively. This position is not disputed by the contesting respondents. The plots are shown at eastern side abutting the existing road. 11) The contention of the respondents is, since the sale-deed is a joint venture, there cannot be clamp of injunction against the co- owners. Though legal position is correct, however, sale-deed itself has a dimunitive effect of branding to be a transaction in co-ownership as the property was purchased with specific markings as to the plots, supported with a map, though not part of the sale-deed. The said map is not in controversy between the parties. 12) Even if the respondent nos.5 to 25 have settled, with respondent nos.1 to 4, in respect of the property, it is needless to indicate that such transaction could not be covering the distinctive four plots of the appellants including proportionate rights in common space and the area of amenity. 13) Any transaction between the Respondents Nos.1 to 4 and 5 to 25 would be dehors the four plots, common rights of the appellants in the open space and the amenity, including the access. 14) It is certain, transaction between would be in the spirit of Section 44 of the Transfer of Property Act, 1882; but since the 5 sale-deed qualifies distinctive portion, purchased by the appellants, transaction between the respondents interse will have its effect, not prejudicial to the rights of the appellants. 15) Thus, transaction interse by respondent Nos. 1 to 4 with Respondent Nos. 5 to 25 would not be affecting the rights of the appellants as their plots are distinctly earmarked in the sale- deed. 16) With the above clarifications, the Appeal from Order is disposed of. Refusal to grant Exhibit-218 is modified to the extent as above. No costs. CA disposed of. (K.U.CHANDIWAL) JUDGE bdv/