Dinkar vs Kondiba

A.I.S. Cheema, J.

Appeal is admitted. Counsel for both sides heard finally.

The appellant (Ori. Defendant) has filed this Appeal from Order against respondent (Ori. Plaintiff), in view of rejection of his application Exhibit 5 in Regular Civil Appeal No. 9/2013 by District Judge-II, Sangamner, District Ahmednagar vide order dated 02.03.2013.

The Respondent had filed Civil Suit No. 207/2013 against Appellant-Defendant No. 1-Dinkar and one Thakubai w/o Damu Shelke. Matter abated as regards Thakubai on her death. The suit was filed for declaration, recovery of possession of 2 acre of land from survey No. 382/3(B) of south-west corner at Devthan and perpetual injunction against defendant. The suit has been decreed and sale-deed executed by the deceased-Thakubai in favour of Appellant on 05.1.2003 has been declared as illegal and not binding on respondent; Appellant has been directed to deliver vacant possession of 2 acre land from survey No. 382/3(B) of south-west corner (alleged to have been taken possession of by the Appellant, after obtaining temporary injunction during the suit); and Appellant has been restrained from obstructing peaceful possession of Respondent over the suit property as described in the plaint. There are other directions regarding mesne profit etc.

Against the judgment and decree passed by dismissal of counter claim of Appellant, he preferred Regular Civil Appeal No. 9/2013 before District Judge, Sangamner, District Ahmednagar. Appellant claimed that during the pendency of suit, temporary injunction had been granted in his favour, and so injunction pending appeal be granted. However, the appellate Court referred to observations in the judgment of the trial Court and rejected the application. Thus, the Appeal from Order.

I have heard counsel for both sides. Points for consideration are :-

i] Whether the impugned order passed by the first appellate Court is maintainable?

ii] Whether the Appellant is entitle to temporary injunction during the pendency of the appeal claimed?

The learned counsel for both the parties have invited my attention to the various points, issues as were raised before the trial Court and which have been discussed by the trial Court in its judgment. The learned counsel for appellant invited my attention to the order passed by this Court in Writ Petition No. 2852/2013 and submitted that against the same judgment and decree of the trial Court, the Appellant filed Regular Civil Appeal No. 8/2013 against the judgment decreeing the suit before leaned District Judge-II, Sangamner, District Ahmednagar, in which exhibit 7 was moved for stay to the judgment and decree passed by the trial Court on 25.10.2012 in Special Civil Suit No. 107/2003. He submits that the application in that appeal was also rejected, leading to filing of Writ Petition No. 2852/2013 between the parties, and the order has been passed in favour of the present Appellant. Perusal of the order dated 02.03.2013. The points which are having agitated before me in present Appeal from Order have been discussed by this Court in Writ Petition No. 2852/2013. This Court vide order dated 03.07.2013 in para No. 9 of Writ Petition No. 2852/2013 found as under. :-

" I have considered rival submissions made by learned counsel for the parties. I have also perused the material on record. As noted earlier, the plaintiff filed the suit for declaration of his title as also that the sale deed executed by defendant No. 2, since deceased, in favour of defendant No. 1, is illegal and same is not binding on the plaintiff. During pendency of that suit, the plaintiff preferred application exhibit 6 and defendant No. 1 preferred application exhibit 21. After hearing both the sides, by order dated 6th February, 2004, the learned trial Judge dismissed the application exhibit 6 preferred by the plaintiff and allowed the application at exhibit 21 made by defendant No. 1. The learned trial Judge restrained the plaintiff from causing any kind of obstruction to the peaceful possession of defendant No. 1 over the suit property till the decision of the suit. It is not in dispute that the said injunction was operative during pendency of the suit and suit came to be decided on 25th October, 2012. Immediately thereafter, defendant No. 1 filed appeal on 18th January, 2013 and took out the application at exhibit 7 for stay of the decree passed by the learned trial Court. By the impugned order dated 2nd March, 2013, the learned District Judge-2, Sangamner, dismissed the application and virtually rendered the appeal preferred by the defendant No. 1 infructuous. In other words, the plaintiff can proceed with the execution of the decree passed by the trial Court. The learned District Judge, in such circumstances, either could have decided the appeal at earliest or could have granted stay, subject to imposing certain conditions. The learned District Judge, in my opinion, was not justified in dismissing the application for stay. In view thereof the impugned order cannot be sustained and the same deserves to be quashed and set aside."

Para No. 10 of the order passed in that order shows that the present Appellant who was the petitioner there, given following directions :-

"In view thereof, Writ Petition is disposed of in the following terms :

a] The impugned order dated 2nd March, 2013 passed by the learned District Judge-2, Sangamner, below exhibit 7 is quashed and set aside. The application below exhibit 7 in R.C.A. No. 8 of 2013 is allowed, subject to defendant No. 1 and other adult members in the family, filing undertaking in the District Court within four weeks, incorporating therein;

(i) that, defendant No. 1 and his other adult family members are in possession of the suit land and none else is in possession;

(ii) that, they have neither created third party interests including by executing agreement of sale in respect of the suit land nor parted with the possession; and that, during pendency of the suit, they will neither create third party interests including by executing agreement of sale in respect of the suit land nor will part with the possession.

(iii) Liberty to respondent to apply in case, the petitioners do not file undertaking in the abovesaid terms within the stipulated time.

b] Rule is made absolute in terms of the above order with no order as to costs."

The learned counsel for Appellant has filed affidavit dated 13.01.2014 and it is claimed that as per direction in the above stated Writ Petition, necessary undertaking has already be given in the District Court.

Looking to the findings recorded and the undertaking directed to be given, it is apparent that the present Appellant has been directed not to create third party interests in respect of the suit land and not to part with the possession. Looking to reasonings, I find that the order below exhibit 5 in R.C.A. No. 9/2013 cannot be maintained. When during pendency of the suit, injunction was operating in favour of appellant (defendant No. 1) at the interim stage of application for temporary injunction during appeal, looking to the facts of the matter, it would have been appropriate for the first appellate Court to continue the temporary injunction till final decision of the appeal.

For the above reasons :-

(i) The Appeal is allowed. The impugned order dated 02.03.2013 in R.C.A. No. 9/2013 is quashed and set aside. Respondent (Original plaintiff) is restrained from disturbing peaceful possession of the Appellant (Original defendant No. 1) in the suit land till decision of the R.C.A. No. 9/2013.

(ii) The District Judge-II, Sangamner, District Ahmednagar is directed to expedite the hearing of appeal bearing R.C.A. No. 9/2013. The preparation of the formal paper book be dispensed with. The R.C.A. No. 9/2013 be decided finally within a period of three months.