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High Court of Judicature at Bombay
MR. JUSTICE R.C. CHAVAN
Smt. Laxmibai Ramkrishna Pate & Another
Versus
Smt. Kondabai Dattatrya Dumbre & Others
APPEAL FROM ORDER NO. 629 OF 2010
Decided on: 05-07-2010
The prayer was for recording their names in revenue records of all fields. It is also not referred to in Memo of appeal to 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. While doing so the S.D.O too observed that plain tiffs had relied on partition deed dated 31st December 1978 for exclusion of their land from acquisition.
In view of this the learned Judge should have seen that the appellants 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 strained the respondents from disturbing the appellants possession in respect of fields, Survey Nos. 364/1 and 364/2.
As far as creating third party interest is concerned provision 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 needs 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 pendency of the lis unless it is shown that the litigation could be rendered infructuous, if a preventive order is not passed.
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 Nos. 364/1 and 364/2 till the disposal of the suit.
This Appeal is directed against the order passed by the learned Civil Judge, Senior Division, Pune, rejecting appellant's 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 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 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.
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,
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