varsha IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 700 OF 2023 Chandrakant Rangrao Kadam and Ors. ..Applicants (Ori. Defendants)

Versus Shri Vijay Namdev Powar and Ors. …Respondents (Ori. Plaintiffs)

Mr. Anand Patil, for the applicants.

Mr. Prajakt Arjunwadkar with Mr. Raj Satam, for the respondent nos.

1,2 and 4.

Digitally signed by VARSHA CORAM: N. J. JAMADAR, J.

VARSHA DEEPAK DEEPAK GAIKWAD GAIKWAD Date: RESERVED ON : 17^th FEBRUARY 2025

2025.05.07

20:17:55 +0530 PRONOUNCED ON: 7^th May 2025 ORDER:

1. This Revision Application is directed against an order passed by the learned Civil Judge on 21^st September 2023, whereby an application preferred by the applicants/defendants for rejection of the plaint (Exhibit-29) under the provisions of order VII Rule 11 (a) and (d)

of Code of Civil Procedure, 1908 (the Code) came to be rejected.

2. Shorn of unnecessary details, the background facts can be stated as under:

2.1 The respondents/plaintiffs instituted a suit for perpetual injunction to restrain the petitioners / defendants from creating from disclosing, alienating or otherwise creating any third party rights in land bearing Gat No. 465 /A situated at Kasba Bawada, Kolhapur (the suit land), with the assertion that, the suit land is ancestral property of the plaintiffs and defendants and there has not been partition by metes and bounds.

2.2 Rangrao was the common ancestor. Rangrao passed away on 21^st August 1980, leaving behind three sons namely, Baburao, the predecessor in title of defendant nos. 5 and 6, Pandurang, the predecessor in title of defendant nos. 7, 8 and 9, Chandrakant defendant no. 4 and a daughter; Mangal. Defendant Nos. 2,3 and 4 are the wife and sons of defendant no.1. 2.3 Mangal passed away on 1^st December 2018. Mangal was the wife of plaintiff no. 2 and mother of plaintiff no. 1, 3 and 4.

2.4. The plaintiffs assert that, during the lifetime of Mangal she was in possession of the suit land as a co- sharer. After the demise of Mangal, the plaintiffs have been in cultivation and possession of the suit land along with the defendants. However, as the price of the land has substantially increased due to its inclusion in urban area, the defendants have started to sell the suit land. A public notice was published in the newspaper on 6^th September 2021. Even few days prior to the institution of the suit, the defendants entered into negotiations with the prospective purchaser.

2.5 The plaintiffs called upon the defendants to partition the suit land and allot their share therein. However, the defendants refuted the plaintiffs claim. Hence, the plaintiffs were constrained to institute a suit to restrain the defendants from alienating or otherwise creating any third party interest in the suit land.

3. Defendants filed an application for rejection of the plaint on the ground that, the defendants have categorically denied the interest of Mangal, the predecessor in title of the plaintiffs in the suit land. Dispute about the title of the plaintiffs in the suit land has arisen. Yet, the plaintiffs have instituted a suit for injunction simpliciter without seeking any declaration or partition of the suit land. Thus, a suit for injunction simpliciter is not tenable. The defendants further contend that late Mangal had never asserted her interest in the suit land during the lifetime of Rangrao and even after his demise. In the year 1992, there was a partition amongst the sons of Rangrao, namely, Baburao, Pandurang and Chandrakant, the defendant no. 1. Neither late Mangal, during her lifetime, nor the plaintiffs, after the demise of Mangal, have ever laid any claim over the suit land. Nor sought the partition.

Therefore, the plaint deserved to be rejected.

4. The plaintiffs resisted the application.

5. By the impugned order, the learned Civil Judge was persuaded to reject the application observing, inter alia, that a co-owner can institute a suit for injunction simpliciter to protect its co-own