Udayraj Babaso Patil vs Pramod Babaso Patil

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Bom) 123

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Milind N. Jadhav, J.
Udayraj Babaso Patil – Petitioner
Versus
Pramod Babaso Patil - Respondent
Writ Petition No. 10424 of 2022
Decided On : 19-01-2023

Advocates:
Advocate Appeared:
For the Petitioner:Mr. Manoj A. Patil, Advocate
For the Respondent:Mr. Prajakt Arjunwadkar, Advocate

Headnote:
Evidence Act, 1872 – Section 114 – Specific Relief Act, 1963 – Section 38 – Consolidation of Holdings Act, 1947 – If a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him – A perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication – Whether he had raised similar objections to structures standing on portion of suit property allocated to his deceased brother Sanjay and his legal heirs, he has no answers – Held, It is clarified that since order below Exhibit-5 has been passed on basis of prima facie consideration by learned Trial Court, it is directed that interest of justice would be sub-served, if while allowing Defendant to carry out, complete construction and use of structure, same shall be made subject to ultimate decision of pending suit before learned Trial Court – Defendant cannot be directed to demolish construction at this stage nor it would be proper to stop further construction of house which is almost complete – It is directed that learned Trial Court shall dispose of suit as expeditiously as possible in accordance with law – Ordered Accordingly.

JUDGMENT :

1. By the present Writ Petition, Petitioner has prayed for the following reliefs:-

“b. This Hon’ble Court be pleased to issue appropriate writ, order or direction and to quash and set aside the impugned judgment and order dt.26/05/2022 passed by the Ld. District Judge-1, Jaysingpur in Misc. Civil Appeal No. 19 of 2021 and further be pleased to restore and confirm the order dt. 21/10/2021 passed by the Ld. Civil Judge Junior Division, Kurundwad below Exhibit 5 in Regular Civil Suit No. 95 of 2021.

d. This Hon’ble Court be pleased to issue appropriate writ, order and or direction and to allow/permit the Petitioner to carry out the construction activity of house property into the land of 0.08.46 R of Gat No. 2273 to the extent of his partitioned share [middle portion of suit gat property] situated at Abdul Lat, Tal.: Shirol, Dist.: Kolhapur.”

2. Briefly stated the facts are set out hereunder:-

2.1. Petitioner and Respondent are brothers. Respondent is the original Plaintiff who has filed Regular Civil Suit No.95 of 2021 in the Court of Civil Judge Junior Division, Kurundwad (for short “Trial Court”) for seeking perpetual injunction against the Petitioner i.e. original Defendant No.1. For the sake of convenience parties shall be referred to as Plaintiff and Defendant.

2.2. Suit property ad-measures 0.25.38 R of Gat No.2273 situated at Abdullat, Tal.: Shirol, Dist.: Kolhapur. Suit property is one of the many properties belonging to late Babaso Annaso Patil i.e. father of the Plaintiff and Defendant.

2.3. After the demise of their father, Plaintiff and Defendant alongwith other legal heirs filed Regular Civil Suit No.5 of 2014 for partition and declaration. The said suit came to be compromised between all legal heirs namely Plaintiff, Defendant and another real brother called Sanjay (since deceased) and now represented by his legal heirs. Plaintiff does not have any dispute with Sanjay’s branch.

2.4. According to the compromise decree dated 01.04.2014, Plaintiff, Defendant and Sanjay were respectively allocated 1/3rd share in all properties belonging to their father.

2.5. Though the suit property was part of several properties, it is contended that the same was not partitioned by metes and bounds in view of the bar under the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (for short “the said Act”). However, according to the Plaintiff, suit property came to be equally divided between the three brothers and each of them became entitled to 0.08.46 R. It is contended that suit property was not demarcated by boundaries and was held jointly by all three brothers.

2.6. Plaintiff is aggrieved by the construction activity commenced on the suit property by Defendant No.1 and hence has opposed the said construction by filing Regular Civil Suit No.95 of 2021.

2.7. Exhibit-5 Application seeking temporary injunction was filed. It is contended that Defendant No.1, Defendant No.2 and Defendant No.4 filed their written statements and resisted the plaint. It was Defendants’ contention that notional partition of the suit property was effected on 01.05.2013 by all brothers in the presence of panchas / elders of village and accordingly 0.08.46 R out of the suit property came to be allocated to each of the three brothers. It is an admitted position that each of the portions of the suit property coming to the share of each brother has frontage on Abdul Lat – Dattwadwas Road. That Plaintiff was given the northern portion, Defendant was given the middle portion and Sanjay represented by Defendant Nos.2 to 4 was allocated the southern portion out of the suit property. Each of the three brothers in the suit property have a frontage on the aforesaid road and hence since 01.05.2013 each of them continued enjoying their respective share in the suit property.

2.8. Plaintiff has contended that though the suit property was part of partition suit namely Regular Civil Suit No.5 of 2014, save and except the suit property,