High Court
Legal Reasoning
937-wp-4089-2024.odt-1-IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD937 WRIT PETITION NO. 4089 OF 2024Ramkrushna Pandurang PatilAge 52 years, Occu. Agri.,R/o Melsangve, TalukaMuktainagar, District jalgaon...PetitionerVERSUS1.Nana Pandurang PatilAge 66 years, Occu. Agril.,R/o. Behind State Bank,Ahilyabai Holkar nagar, Muktainagar,Tq. Muktainagar, Dist. Jalgaon2.Suryakant s/o Pandurang Patil,Age 68 years, Occu. Agri.3.Vijay s/o Pandurang Patil,Deceased, through L.Rs.3-A)Harshad s/o Vijay PatilAge 27 years, Occu. Education3-B) Sagar s/o Vijay PatilAge 25 years, Occu. EducationNos. 3-a & 3-B. R/o C/oRamdas Bhavdu Patil Behind Rest House, Nepanagar,Tq. Nepanagar, Dist. Barhanpur (M.P.)4)Bharat s/o Pandurang Patil,Age 54 years, Occu. Agri5)Sunil s/o Pandurang Patil, Age 52 years, Occu. Agri6) Digambar s'o Pandurang Patil, Age 56 years, Occu. Agri.7)Ravindra s/o Pandurang Patil, Age 51 yours, Occu Agri.Narwade 937-wp-4089-2024.odt-2-R/o Shivram Nagar, Ward No.6Muktainagar. Tq. Muktainagar, Dist. Jalgaon8)Dilip so Pandurang Patil, Age 50 years, Occu. Agri.9)Shobha Suresh Patil, Age 64 years, Occu Agri.,R/o Thormar. Tq. Muktainagar, Dist. Jalgaon10)Mangala Bhaskar BorseAge: 55 years, Occu Agri.,R/o Tanajinagar, Near Box Stand Tq & Dist. Buldhana Nos. 2, 4, 5, 6, 8 R/o Melsangve,Tq. Muktainagar, Dist. Jalgaon...Respondents...Mr. Siddharth B. Yawalkar, Advocate for the PetitionerMr. Vishnu M. Jaware, Advocate for Respondent Nos.4,6 & 8Mr. Chandrakant P. Patil, Advocate for Respondent Nos.2, 3 (A & B)... CORAM :ROHIT W. JOSHI, J. DATED :3rd JULY 2025ORAL JUDGMENT :- 1.The petitioner in the present petition is original complainantwho has filed a suit for partition and separate possession beingRegular Civil Suit No.52 of 2017 with respect to several propertiesclaiming that the said properties are ancestral properties of the jointHindu Family of the plaintiffs and the defendants. One of theproperties which is referred in the plaint is land bearing Gat No.138/1situated in Village Melsangave, Tah. Muktainangar Dist. Jalgaon (forNarwade 937-wp-4089-2024.odt-3-short “said property”).2.As regards this property the contention of the petitioner is thatthe said property was given by father of the parties to the plaintiff anddefendant no.6, since they had extended certain financial help to thefather. Petitioner claims that the petitioner and respondent no.6 are inpossession of the said property since the year 1983. The property isalso mutated in their names to the exclusion of other family memberssince the year 1983. The 7/12 extract show that the said entry ofmutation is a long standing entry in the names of petitioner andrespondent no.6 for a period of around 40 years. The petitioner filedan application for grant of temporary injunction in the said Civil SuitExhibit-90 contending that respondent nos.4,5 and 8 were trying todisturb his possession over the said property. It will be pertinent tomention here that according to the petitioner the eastern half of thesaid property is in his possession whereas the western half portion isin the possession of respondent no.6. The learned Trial Court allowedthe application for grant of temporary injunction filed by thepetitioner vide order dated 20.09.2023. However, Miscellaneous CivilAppeal filed by all the respondent i.e. original defendants came to beallowed vide judgment and order dated 26.02.2024 passed by thelearned District Judge-3, Bhusawal in Miscellaneous Civil AppealNo.50 of 2023.Narwade
Legal Reasoning
937-wp-4089-2024.odt-4-3.The learned appellate court has held that the petitioner andrespondents are co-owners of the property and that one co-ownercannot seek injunction against another co-owner. Other than this, thelearned Appellate Court has also held that there is no material onrecord to infer demarcation of the property between petitioner andrespondent no.6 and therefore order of temporary injunction couldnot be sustained.4.The learned counsel for the petitioner places reliance onjudgment of the Hon’ble Supreme Court in the matter of TanushreeBasu Vs. Ishani reported in 2008 AIR Supreme Court decree 2152 tocontend that in a suit for partition the arrangement inter se madebetween the co-owners can be taken into consideration to grant orderof temporary injunction in favour of a co-owner. As regards thefinding by the learned Appellate Court that there is no material toinfer demarcation of the property between petitioner and respondentno.6, the learned Counsel states that the injunction is sought onlyagainst respondent nos.4,5 and 8 and not against respondent no.6and therefore the said finding made by the learned Appellate Courtwas not relevant for deciding the appeal.5.The learned counsel for respondents justifies the ordercontending that it is a settled legal position that possession of one ofNarwade 937-wp-4089-2024.odt-5-the co-owners is possession of all and therefore injunction cannot begrated in favour of one of the co-owners and against other co-owners.He also contends that the property with respect to which relief ofinjunction is sought is not suit property. Referring to the plaintaverments and particularly the prayer clause the learned counselraises a contention that the property with respect to which injunctionis sought is not a suit property since the suit is not for partition of thesaid property. The learned Advocate therefore contends that thepetition should be dismissed.6.As regards the contention that Gat No.138/1 is not a suitproperty and therefore injunction cannot be granted with respect tothe said property, this Court is of the opinion that the contention ofthe learned Counsel for respondent is not correct. Although there isno prayer for partition of the said property, the plaint specificallyrefers to the said property. It is contended that this property was givenby the father to the two brothers namely petitioner and respondentno.6 and that they were accordingly in possession of the same sincethe year 1983. On this ground the petitioner /original plaintiff hasprayed that other properties should be partitioned excluding thisproperty. The property is also referred in the prayer clause where it isspecifically prayed that all other properties be partitioned except thisproperty.Narwade 937-wp-4089-2024.odt-6-7.It is well settled that a suit for partial partition is notmaintainable. In view of the above, the plaintiff has made a referenceto the said property in the plaint and has raised a contention that theproperty cannot be subjected to partition between the familymembers. The said aspect will certainly fall for consideration andadjudication in the Civil Suit for partition. In that sense the propertyhas to be regarded as a suit property although specific prayer forpartition is not made with respect to the said property in the light ofpleadings referred above.8.As regards the injunction to be granted against co-owners, it iswell settled that normally injunction cannot be granted in favour ofone co-owner against other co-owners. It is also well settled thatpossession of a co-owner is possession for and on behalf of all.However, in the present case, as stated above, the petitioner has comeup with a specific case that he and respondent no.6 were placed inpossession of the property by the father in the year 1983. The revenuerecord suggests that petitioner and respondent no.6 are in possessionof the property to the exclusion of other family members. There is along standing revenue entry in favour of petitioner and respondentno.6 since the year 1983 and onwards. It goes without saying thatlong standing entries have presumption of correctness. 9.As regards the legal principal that injunction cannot be grantedNarwade 937-wp-4089-2024.odt-7-against a co-owner, in my considered opinion, the learned counsel forthe petitioner has rightly placed reliance on the judgment of theHon’ble Supreme Court in the matter of Tanushree Basu Vs. Ishani(supra) wherein it is held that interim arrangement between familymembers must be respected and possession should be protected bygranting appropriate order of temporary injunction. Hon’ble SupremeCourt has categorically held that during pendency of a suit a co-sharercannot take law in his own hands to dispossess the other co-sharer.The said legal principal is squarely applicable to the facts of thepresent case.10.As regards the last contention that there is no material to showdemarcation of property inter se between petitioner and respondentno.6, it needs to be mentioned that the petitioner is not seeking anyinjunction against respondent no.6. Injunction is sought only againstrespondent nos.4,5 and 8. The said aspect should not have weighedwith the learned First Appellate Court while allowing the Appeal.11.In view of the above, in the considered opinion of this Court,the learned Appellate Court has erred in law in reversing order oftemporary injunction granted by the learned Trial Court. The orderpassed by the learned Trial Court is therefore required to be restoredby quashing and setting aside the judgment and order passed by theNarwade 937-wp-4089-2024.odt-8-First Appellate Court. Further it also needs to be clarified that theorder of temporary injunction will not operate against respondentno.6.12.With this, the petition is allowed by quashing and setting asidethe order dated 26.02.2024, passed by the learned District Judge-3Bhusawal in Miscellaneous Civil Appeal No. 50 of 2023.13.Parties to bear their own cost.[ROHIT W. JOSHI, J.]Narwade