High Court
Legal Reasoning
(1) AO-49-2022.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADAPPEAL FROM ORDER NO.49 OF 2022WITHCIVIL APPLICATION NO.11449 OF 2022ANDAPPEAL FROM ORDER NO.11 OF 2023WITHCIVIL APPLICATION NO.2046 OF 2023ANDAPPEAL FROM ORDER NO.13 OF 2023WITHCIVIL APPLICATION NO.2052 OF 2023ANDAPPEAL FROM ORDER NO.12 OF 2023WITHCIVIL APPLICATION NO.2049 OF 20231.Smt. Kalpana Suhas Suryavanshi, Age 59 yrs., Occ. Household, Sneh Sadan, Gr. Floor, Ram Maruti Road, Cross Lane No.3, Naupada, Thane-400602 2. Shri. Rajesh Anandprakash Chaudhari, Age 58 yrs., Occ. Retired, Permanent Address: Happy Colony, Kothrud, Pune-411038 Present Address: Dispossessed since 12.04.2022 from Vitthal Niwas, Near Samartha Wagdevta Mandir, Malegaon Road, Dhule 424001 3. Smt. Sunanda Rajesh Chaudhari, Age 57 yrs., Occ: VRS, Permanent Address: Vitthal Niwas, Near Samartha Wagdevta Mandir, Malegaon Road, Dhule 424001 Dispossessed since 12.04.2022 from the above address 4. Smt. Suman Suryaji Salunkhe, (Died) Expired on 24.01.2022 at Vitthal Niwas, Near Samartha Wagdevta Mandir, Malegaon Road, Dhule 424001 (2) AO-49-2022.odt5. Smt. Kumudini Krishnadutta Iyengar,Age 54 yrs., Occ: Household, Permanent Address: 51 First Main, Yadavgiri, Mysore - 570020, Karnataka Dispossessed since 12.04.2022 from Regd. Address: C/o. Sunanda R. Chaudhari,Vitthal Niwas, Near Samartha Wagdevta Mandir, Malegaon Road, Dhule 424001 6. Smt. Vandana Kailas Shinde,Age 52 yrs., Occ: Service, R/a. Mhasoba Lane, Shinde Bldg., Near Hemlata Talkies, Nashik 422011 ..Appellants (Org. Plaintiffs)Versus1.Shri. Jayant Suryaji Salunkhe,Age: 56 yrs, Occ: Garage, R/a: Vitthal Niwas, Near Samartha Wagdevta Mandir, Malegaon Road, Dhule 424001 2. Shri. Ranjit Suryaji Salunkhe,Age: 50 yrs, Occ: Service, R/a: Vitthal Niwas, Near Samartha Wagdevta Mandir, Malegaon Road, Dhule 424001 ..Respondents (Org. Defendants)…Mr. C. S. Joshi a/2 Mr. S. N. Lavekar and Mrs. Sunanda Konkar, Advocate for Appellants.Mr. Mukul S. Kulkarni, Advocate for Respondent Nos.1 and 2.… CORAM : S. G. CHAPALGAONKAR, J.RESERVED ON :- 27th JANUARY, 2025.PRONOUNCED ON :- 19th MARCH, 2025.JUDGMENT:-1.The present Appeals from Orders filed by original plaintiffsimpugning common order dated 05.05.2022 passed by 4th JointCivil Judge, Senior Division, Dhule below Exhibits 5, 25, 82 and 99in Special Civil Suit No.62/2021. (3) AO-49-2022.odt2.Initially, common Appeal was filed. However, on objection byrespondents, leave was granted under order dated 21.12.2022 tofile independent Appeal against each of the order passed belowrespective Exhibits. With a view to understand challenge inindividual Appeals, description of each of Exhibit decided underimpugned order is given herewith in tabular form:Sr.No.Appeal FromOrderCivil Application forAgainstApplication atRelief Prayed01.A.O. NO.49 of2022C.A.No.11449 of 20221) to restrain from commonenjoyment.2) To restrain from enteringVarandah.3) To reopen closed access4) Permission to sale share inproperty5) Not to change the nature ofpropertyExhibit 25 Filedby Rajesh,Sunanda andSuman I.e Org.Defendant Nos.1to 3 (NowPlaintiff Nos.2 to4)For mandatoryinjunction ofpossession.02.A.O. NO.11 of2023C.A.No.2046 of 20231) Not to obstruct commonenjoyment of suit property.2) To reopen access which isclosed.Exhibit 5 Filed byKalpana Org.PlaintiffNot to obstructcommonpossession ofplaintiff anddefendant nos.6and 7.03.A.O. NO.12 of2023C.A.No.2049 of 20231) Not to change the nature ofproperty.2) Not to obstruct commonenjoyment.Exhibit 99 Filedby Rajesh-Org.Defendant No.1(Now PlaintiffNo.2.)-Not to changenature of suitproperty.-In the backdropof bamboofencing.04.A.O. NO.13 of2023C.A.No.2052 of 20231) To sale their share in thesuit property.2) To alienate their share inthe suit property.Exhibit 82 Filedby Jayant &Rajit-Org.Defendant Nos.6& 7 (NowDefendant Nos.1& 2)Not to alienatethe suit property.3.It is apparent from aforesaid chart that aforesaidapplications are filed seeking relief of temporary or mandatoryinjunction by plaintiffs and defendants against each other. The (4) AO-49-2022.odtoriginal plaintiffs are seeking relief of mandatory injunction andpossession against defendants, whereas defendants are seekingrelief of injunction that plaintiffs shall not alienate or create thirdparty interest in suit property. 4.Principally, suit has been instituted seeking decree ofpartition, separate possession and perpetual injunction frominterfering in joint possession of plaintiffs. The suit property isdescribed as final Plot Nos.131 and 142 admeasuring 18.13Rsituated at Survey No.459/2, Malegaon Road, Dist. Dhule. It wasoriginally owned by Yashwant Vithoba Salunkhe. He expired on12.02.1974 leaving behind his wife-Chandrabhagabai, son-Suryajiand daughter-Saroj. Suryaji expired on 08.07.2019, whereas Sarojexpired on 30.05.2019. The plaintiffs are legal heirs of Suryaji.According to plaintiffs, suit property is joint family property ofplaintiffs and defendants. They were jointly possessing the same.Recently, dispute arose as regards to enjoyment of property. Thewife of defendant no.7 is an Advocate by profession and she isinsulting plaintiffs and raising day to day quarrels and givingthreats to dispossess them. Some instances of unpleasant incidentof using physical force against each other are given. The plaintiffsassert that they are being forced to abandon their possession anddefendants are claiming exclusive right over suit property. Percontra, defendants assert that plaintiffs have no right in the suit (5) AO-49-2022.odtproperty. They plead that suit is bad for non-joinder of parties, soalso barred by limitation. 5.The learned Trial Judge considered all aforesaid applicationsand passed impugned order granting temporary injunctionrestraining plaintiffs and defendants from alienating or changingnature of suit property until final adjudication of suit.6.Mr. Joshi, learned Advocate appearing for appellants submitsthat this is a classic case where right of female member in jointfamily property is prejudiced by act of male members. By invitingattention of this Court to various documents and contentions inapplications filed on record of Trial Court, it is submitted thatplaintiffs were enjoying joint ownership and possession of suitproperty alongwith defendants. However, impugned order hasbeen passed with predetermined mind. The prayer for mandatoryinjunction and restoration of right of access of plaintiffs has beenprejudiced by impugned order. He would submit that share in jointfamily property can be alienated and there cannot be restriction totransfer, although it may be subject to rigors of Customary HinduLaw. According to him, plaintiffs were entitled for mandatoryinjunction and restoration of their possession in suit property. TheTrial Court prolonged to pass order on Exhibit 5 and Exhibit 25and erroneously opined that Section 6 of Specific Relief Act cannotbe invoked to restore joint possession and enjoyment of property by (6) AO-49-2022.odtplaintiffs alongwith defendants. He submits that documents onrecord clearly shows that plaintiffs were in possession over suitproperty till 08.04.2022, which has been illegally disturbed bydefendants. He submits that Courts have the power to teach alesson to litigants, who are dishonest and use criminal forceagainst co-sharers. According to him, documents at Exhibits 51and 52 show that appellant no.3-Sunanda was continuously inpossession and occupation of portion of suit property. The courtcannot be a silent spectator, when her right for enjoyment andpossession has been prejudiced. In support of his contentions herelies upon number of judgments passed by Supreme Court of Indiaand various High Courts.7.Per contra, Mr. Kulkarni, learned Advocate appearing forrespondents/defendants takes this Court through pleadings andprayers employed in plaint and submits that there is no assertionin entire plaint, by which specific area in possession of plaintiffs insuit property can be ascertained. He would submits that there isno pleading of dispossession from joint possession. According tohim, in absence of such pleadings, various reliefs as claimed underExhibits cannot be granted. He would submit that plaintiffs areclaiming injunction to not to disturb from joint possession. Hewould further point out that there is ample material to show thatplaintiffs are intending to create third party right in suit property, (7) AO-49-2022.odtalthough they cannot have right to sell out or alienate undividedshare in suit property. 8.Having considered submissions advanced and after goingthrough record, particularly pleadings in suit, it is apparent thatplaintiffs and defendants are claiming their individual right inancestral property. The suit property was apparently owned byYashwant Vithoba Salunkhe and thereafter, his son Suryaji anddaughter Saroj. The plaintiffs and defendants are asserting theirrights through Suryaji and Saroj. The amended plaint shows thatrelief of partition and separate possession of suit property soughtwith consequential reliefs of perpetual injunction againstdefendant nos.1 and 3 from obstructing or interfering in jointpossession of plaintiffs over suit property. From reading of entireplaint, it is not discernible that plaintiffs were in possession ofspecific portion of property and immediately before filing suit, theywere dispossessed. In absence of description of specific property onwhich plaintiffs’ claimed their exclusive possession and thendispossession, there is no reason to consider grant of relief ofmandatory injunction or restoration of possession. It is trite that,interim relief can be granted in aid of final relief claimed in suit.The grant of interim relief beyond pleadings and prayers in suitwould not be germane. (8) AO-49-2022.odt9.Although Mr. Joshi, learned Advocate appearing forappellants endeavours to bring to notice of this Court possession ofplaintiffs over specific portion of property on the basis of allieddocuments, in absence of pleadings in plaint such contentionscannot be considered. The legal position as canvassed by learnedAdvocate appearing for plaintiffs cannot be disputed. It is tritethat, in case co-owner, who is expressly or impliedly put intoexclusive enjoyment of joint property, his possession can beprotected against co-owners and in case he is dispossessed, he canbe restored into possession. In facts of the present case, in absenceof specific pleadings as to exclusive possession of property anddispossession immediately before filing suit or during pendency ofsuit, interim relief of mandatory injunction cannot be granted.10.Second contention raised on behalf of appellants that right toalienate share in joint family property cannot be taken away bygranting prohibitory order. It is trite that, interest of coparcener injoint family property can be alienated and purchaser would beentitled to step into shoes of coparcener. However, joint owner orcoparcener has no right to alienate specific share in property. Inpresent case, it has been surfaced on record that plaintiffs wereintending to sell out their interest to third party. Even from theirpleadings it can be discerned that they are intending to createthird party right in suit property. In case of such alienation,
Decision
(9) AO-49-2022.odtparticularly in respect of house belonging to undivided family,great prejudice may cause to other members. In thatcircumstances, keeping in mind interest of parties, certainlyinjunction can be granted restraining transfer of joint familyproperty. Even in such case, right of preemption can be exercisedby party in possession. Looking to the totality of circumstances,this Court is of the view that interference in impugned order wouldbe unwarranted. However, looking to the nature of dispute,propriety requires that suit itself is taken up for expeditioushearing and final disposal for which parties shall co-operate. 11.In result, Appeal from Orders are dismissed. However, TrialCourt shall endeavour for expeditious disposal of suit, in any casewithin period of one year from the date of this order. Parties shallnot seek unnecessary adjournment and shall co-operate for earlydisposal.12.In view of dismissal of Appeals from Order, pending CivilApplications also stand disposed of accordingly. (S. G. CHAPALGAONKAR)JUDGEDevendra/March-2025