Sau. Roshanbi Rasool Tamboli vs Rajendra

A.I.S. Cheema, J.

Admit. Heard finally by consent of learned counsel for the parties.

This is Appeal against order dated 23.4.2013, passed by Ad hoc District Judge-1, Osmanabad, below Exh.5 in Regular Civil Appeal No.285/2012. By the order, the Ad hoc District Judge rejected the application of present appellants for injunction. The appellants No.1 to 3 before this Court are the original plaintiffs and respondents as arrayed, were original defendants. The suit of the plaintiffs was dismissed by the Civil Judge, Junior Division, at Tuljapur on 13.9.2012 and they carried the appeal to the District Court at Osmanabad, in which the above application moved has been rejected.

In brief, the facts are as under :

(a) 14 Hector 24 R land of Survey no.48 - Gat No. 146 of Kakramba was the property of Nivrutti Yeshwant Patil. Defendants No.3 to 5 are the wives of deceased Nivrutti Patil. (Now even defendant No.3 is dead). Defendant Nos.4 and 5 had earlier filed suit for declaration and permanent injunction against defendant No.2, 3 and one Rama Yeshwantrao Patil being Regular Civil Suit No.237/1981 in the Court of Civil Judge, Junior Division, Tuljapur, claiming one third share each. Share of defendant Nos.4 and 5 was upheld. Defendants No.2 and 3 filed Regular Civil Appeal No.175/1989 before the District Court, Osmanabad. The appeal came to be dismissed on 8.7.1991 upholding the conclusion that defendant Nos.4 and 5 were in actual possession of suit land. Defendant Nos.2 and 3 further carried the matter in Second Appeal No.65/1992, but the same came to be dismissed on 8.7.1992.

(b) The appellants/ plaintiffs claim that there was oral partition between defendant Nos.3 to 5 and each of them had secured 4 Hector 95 R land from Gat No.146. By separate bonds dated 25.1.1991, defendant No.1 accepted the right of defendant Nos.4 and 5 in the property of deceased Nivrutti Patil. On 4.5.1991, defendant No.1 filed Regular Civil Suit No.102/1991 for partition and separate possession against defendant Nos.3 to 6 and to declare that the sale deed dated 10.10.1986 executed by defendant No.3 in favour of defendant No.6 is not binding on his share. The suit was decreed on 4.5.1996 holding that defendant No.1 is entitled to half share in the suit property and that the sale deed dated 10.10.1986 was not binding on defendant No.1. Defendant Nos.2 and 3 filed Regular Civil Appeal No.73/1996 against that judgment and that appeal came to be dismissed in default on 3.8.2005. Subsequent restoration application was also dismissed on 20.6.2012.

(c) Appellants - plaintiff claim that on 10.3.1997, defendant No.5 sold her share of land i.e. 4 Hector 95 R to plaintiffs by registered sale deed dated 10.3.1997. The plaintiffs are in possession of the suit premises since than and revenue records are in their favour. They dug a well and borewell. Defendant No.1 started obstructing possession of plaintiffs and thus they filed present Regular Civil Suit No.79/2006. Earlier temporary injunction was granted in their favour restraining defendant Nos.1 to 3, but subsequently, it got vacated as plaintiffs were absent. After dismissal of suit, in the appeal, order impugned as above came to be passed and thus, the appeal.

Learned counsel for the appellants has argued, referring to above facts and the chequered history of the matter. He is referring to the impugned order dated 23.4.2013 of the Ad hoc District Judge -1, and claimed that the possession of the plaintiffs would get disturbed if the injunction, pending appeal, is not granted, as suit has been dismissed and defendant No.1 needs to be restrained.

Relying on the judgment of the Hon''ble Supreme Court in the matter of Mandali Ranganna and Others etc. Vs. T. Ramachandra and Others, learned counsel for the appellants submitted that, for the purposes of injunction, the Court needs to see not only the basic elements in relation to the grant of injunction but also to take into consideration the conduct of the parties. According to him, plaintiffs have dug well in the property in dispute and defendant No.1 is likely to disturb their possession and so, they want that the injunction should have been granted.

Shri S.D. Tare, learned counsel for respondent No.1 and Shri P.M. Gaikwad, learned counsel for respondent Nos.2 and 6 have opposed the appeal, claiming that the defendant No.1 had filed suit for partition being Regular Civil Suit No.102/1991 on 4.5.1991 and it was decreed on 4.5.1996. He later on filed Execution Application (Darkhast) No.3/1997 and during that time, when the execution was pending, respondent No.5 executed the sale deed on 10.3.1997 in favour of the present plaintiffs/appellants. The learned counsel point out panchanama to show that, defendant No.1 was in possession of the suit property on 23.3.2006 and so, when the present suit was filed by appellants on 1.4.2006, the appellants were not in possession and so, could not claim injunction.

The point for consideration in this Appeal from Order is :

"Whether the appellants prove that they are entitled to temporary injunction pending their appeal and if the impugned order is not maintainable."

The contesting defendants have pointed out copy of the panchanama in Darkhast No.3/1997 arising from Civil Suit No.102/1991. The document shows that, at the time of execution of the panchanama, notice was issued to even the present plaintiffs, which was declined and thus, the same was sent by registered post. The panchanama shows that, on 23.3.2006, possession as per decree in Darkhast No.3/1997 was handed over to the defendant No. 1. If this is so, when present Regular Civil Suit No.79/2006 was filed on 1.4.2006, the plaintiffs cannot be said to be in physical possession of the suit property. In the trial Court also admittedly although earlier temporary injunction was granted in favour of plaintiffs, subsequently the same came to be vacated. No steps were taken by these plaintiffs when the earlier ex-parte temporary injunction was vacated. When the suit was disposed, no injunction order was operating in favour of the plaintiffs. It is apparent that, plaintiffs purchased suit property when it was under litigation. In the circumstances, plaintiffs do not make out a prima facie case for injunction pending their appeal. No fault can be found with the impugned order.

The Appeal from Order is dismissed. First Appellate Court shall decide the appeal without being influenced by observations in this judgment. No order as to costs.

On pronouncement of the order, learned counsel for the appellant makes a request that the appeal before the first appellate Court may be expedited. Learned counsel for respondent No.1 fairly states that the Court may expedite hearing of the appeal. The First Appellate Court shall expedite the hearing of the appeal and the same may be disposed within the next three months.