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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
Urmila Joshi-Phalke, J.
Deodatta & Ors. – Appellants
Versus
Ujwala & Ors. – Respondents
Appeal Against Order No. 01 of 2023
Decided On : 17-03-2023
Injunction - Property Dispute - Code of Civil Procedure, 1908 - Order XLIII Rule 1(r) - Order XXXIX Rule 1 and 2 - Order XXXVIII Rule 1 and 5 - Section 151 - Suit for declaration, injunction, and partition - Defendant No.1 executed sale-deed in favor of Defendant Nos.4 and 5 during the pendency of the suit - Plaintiff sought injunction against alienation and construction - Trial Court granted injunction - Defendant Nos.4 and 5 appealed - Appeal dismissed - Suit expedited for disposal within six months.
Fact of the Case:
The suit involved a property dispute between the plaintiff and defendant Nos.1 to 3, who were real sisters and daughters of the late Shri Madhukarrao Vitthalrao Bobde. The plaintiff filed a suit seeking declaration, injunction, and partition, alleging that defendant No.1 had executed a sale-deed in favor of defendant Nos.4 and 5 during the pendency of the suit. The plaintiff sought injunction against alienation and construction of the property by defendant Nos.4 and 5.
Finding of the Court:
The Trial Court granted the injunction, restraining defendant Nos.4 and 5 from alienating the property and from making any construction over the property. Defendant Nos.4 and 5 appealed the decision, arguing that they were bona fide purchasers and had purchased the property for valuable consideration. They contended that the Trial Court did not consider their hardship and that the injunction was inequitable and prejudicial to their interests.
Issues: The main issues considered by the Court were whether there was a prima facie case and balance of convenience in favor of the plaintiff to grant an injunction, whether the plaintiff would suffer irreparable loss or more hardship would cause to defendant Nos.4 and 5 if the injunction was granted, and whether the order passed by the Trial Court called for any interference.
Ratio Decidendi: The Court found that the title of defendant No.1 and the validity of the sale-deed executed in favor of defendant Nos.4 and 5 were subject to the genuineness of a Will, and that the transaction entered by defendant No.1 and defendant Nos.4 and 5 depended upon the genuineness of the Will. The Court also considered that defendant Nos.4 and 5 had not made reasonable inquiry before executing the sale-deed and that the issue of whether they were bona fide purchasers was a matter of evidence. The Court concluded that it would not be desirable to vacate the injunction granted in favor of the plaintiff at that stage.
Final Decision: The Court dismissed the appeal, finding it devoid of merits, and expedited the suit for disposal within six months.
JUDGMENT
Urmila Joshi-Phalke, J. - Heard.
2. ADMIT.
3. Present appeal is preferred by the appellants under Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code' for short) against the order dated 07.12.2022 passed by the 13th Civil Judge, Senior Division, Nagpur in Special Civil Suit No.290 of 2015 by which the application filed by the respondent No.1 under Order XXXIX Rule 1 and 2 of the Code along with Order XXXVIII Rule 1 and 5 of the Code and Section 151 of the Code. By the said order the appellants are restrained from alienating or creating any third party interest in the suit property and from changing the nature of suit property by way of construction till final disposal of the suit.
4. The brief facts which are necessary to decide the issue are as follows :
(The parties hereinafter referred as per their original nomenclature.).
The plaintiff and the defendant Nos.1 to 3 are the real sisters and daughters of late Shri Madhukarrao Vitthalrao Bobde The defendant No.1 is the eldest daughter who is a Medical Practitioner and was running maternity home on the ground floor of the house at Wazalwar brothers situated at Tilak Road, Mahal, Nagpur. The defendant Nos.2 and 3 are the real sisters of the plaintiff and they are residing at their respective matrimonial house. The father of the plaintiff and defendant Nos.1 to 3 had taken plot No.491 ad-measuring 4857 sq.ft. bearing Sheet No.337, City Survey No.187 situated at Professors Colony, Hanuman Nagar, Nagpur on permanent lease basis from the Nagpur Improvement Trust (hereinafter referred to as 'the NIT' for short). Accordingly, the Lease Deed has been executed by the NIT in his favour on 19.01.1980. Initially, the said lease was for 30 years commencing from 02.02.1956 up to 31.03.1986. Subsequently, the said lease was continued vide Lease Deed dated 14.09.1988 for the period from 01.04.1986 to 31.03.2016. The lease was a registered lease in the office of Sub-Registrar, Nagpur City dated 16.09.1988. On the above said plot, the father of the plaintiff as well as the father of the defendants had constructed a house bearing Municipal Corporation House No.933 of Ward No.10, Professors Colony, Hanuman Nagar, Nagpur. The father of the plaintiff and the defendants was working as a Professor and was retired much prior to the date of deed of renewal of lease registered in his favour in the year 1988. He was also receiving the pension to maintain himself and his wife. He was residing in the said plot along with his wife.
5. It is alleged by the plaintiff that her parents were of a quiet nature having great patience and tolerance. Both the parents have equal love and affection towards all the four daughters and they were also having love and affection towards their parents. Defendant No.1 is a very stubborn and quarrelsome nature. Due to the said nature she could not cope up with her husband and could not maintain cordial relations with him. She started residing along with the father in the above address since the year 1982. The parents of the plaintiff could not succeed in convincing defendant No.1 to return to her matrimonial house and allowed her to reside with him. After retirement the father of the plaintiff and defendant was residing along with defendant No.1. Due to the retirement and old age both the parents were under mental pressure and having disturbed state of mind. Due to the old age both the parents of the plaintiff and defendant were fully dependent on the defendant No.1 who was residing along with them. The plaintiff married with the brother of the husband of defendant No.1 in the year 1980 and in the year 1985 she shifted to Mumbai and was residing at Mumbai. Her other sisters i.e. defendant No.3 is also pathologist and residing along with her husband. Defendant No.2 was also residing along with her husband. Plaintiff as well as defendant Nos.2 and 3 never interfered in the routine affairs in the house of their father. However, they we
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