Mr Nilkanth P. Bangar, Advocate for v. Tungar, A.G.P. for
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7912.16wp(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 930 WRIT PETITION NO. 7912 OF 2016BANSI RAGHUNATH PARJANE AND ANOTHERVERSUSASARAM RAGHUNATH PARJANE AND OTHERS ….Mr Nilkanth P. Bangar, Advocate for petitioners Mr Hrishikesh V. Tungar, A.G.P. for respondents CORAM : PRAFULLA S. KHUBALKAR, J. DATE : 10th July, 2025PER COURT:1.Heard Advocate Mr Bangar, learned counsel for thepetitioners and Advocate Mr Tungar, learned counsel for therespondents.2.The petitioners take exception to the order dated11/01/2016, passed by the Court of Civil Judge Junior Division, ShirurKasar in Regular Civil Suit No.283/2015 and the order dated14/06/2016, passed by the District Judge-5, Beed in Misc. Civil AppealNo.5/2016. 3.The controversy involved in the petition is with respect tochallenge to the order passed by the Trial Court on application forgrant of temporary injunction, filed by the respondents in RegularCivil Suit No.283/2015. 7912.16wp(2) 4.The petitioners are the original defendants in RegularCivil Suit No.283/2015, which is filed by the respondents seekingpermanent injunction. By the impugned order dated 11/01/2016, theTrial Court has granted temporary injunction to restrain the defendants(petitioners herein) from disturbing the possession of the plaintiffs(respondents herein) during the pendency of the said civil suit. Thisorder was subject matter of challenge in Misc. Civil AppealNo.5/2016, which came to be dismissed by order dated 14/06/2016.5.Advocate Mr Bangar, learned counsel for the petitionerssubmits that Regular Civil Suit filed by the defendants bearing RegularCivil Suit No.283/2015 is in fact a subsequent suit, since the petitionerNo.1 had filed a suit in the year 2013 in the Court of Civil JudgeJunior Division, Beed, which is Regular Civil Suit No.45/2013. Hesubmits that the suit filed by petitioner No.1 is for claiming the reliefof partition and separate possession with respect to several properties,whereas the subsequent suit filed by the respondents is for seekingpermanent injunction with respect to the two properties bearing GutNos.149 and 34. He submits that, since both the suits are in betweenthe same parties and with respect to same properties, the subsequentsuit was liable to be stayed in view of Section 10 of the Code of Civil
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7912.16wp(3) Procedure. He further submits that the subsequent suit filed by therespondents is not maintainable in view of suppression of facts, sincethe plaintiffs in that suit have not disclosed about pendency of earliersuit. He, therefore, submits that, since the suit itself was notmaintainable, the Trial Court ought not to have entertained applicationfor temporary injunction.6.He further submits that the impugned order dated11/01/2016, passed by the Trial Court is erroneous, since the TrialCourt has referred to the mutation entries to infer about possession ofthe respondents and since the suit properties are also subject matter ofpartition in the earlier suit, inference of the Trial Court is erroneous.7.Advocate Mr Tungar, learned counsel for the respondentsvehemently submits that the instant petition is devoid of substance. Hesubmits that the petitioners have not filed application invoking Section10 of the Code of Civil Procedure and as such, the contention in thisregard cannot be entertained. He submits that, for the purpose ofprotecting their own possession, the respondents were entitled to file asuit seeking permanent injunction and therefore, the subsequent suit ismaintainable. He further submits that the learned Trial Court as wellas the Appellate Court have rightly taken into consideration the crucial 7912.16wp(4) aspect about mutation entries, particularly, entry No.366, 1125 and3293 showing the possession of the respondents. He invites theattention of this Court to mutation No.366 dated 15/12/1986, recordingpartition in between the members of the family. He further invitesattention of this Court to the 7/12 extracts with respect to the suitproperties showing names of the members recorded pursuant to themutation entry Nos. 366 and 3293. He vehemently submits that, whileconsidering the temporary injunction application, apart from threeessential ingredients, the conduct of the parties is also very crucial. Inthis regard, he invites attention of this Court to the mutation entryNo.3190 dated 21/06/2011 which records that petitioner No.1/BansiRaghunath Parjane (defendants No.1 in Regular Civil SuitNo.283/2015) has sold the portion of land which was in his possession.On the basis of this mutation entry, he submits that defendant No.1was enjoying the possession of his share and the plaintiffs(respondents in this petition) also enjoying possession of their ownshare. 8.In view of this, he submits that the respondents (plaintiffsin Regular Civil Suit No.283/2015) are in possession of their portionof lands and they are entitled to seek injunction with respect toprotection of their possession. He submits that, the Trial Court has 7912.16wp(5) considered all these relevant aspects and rightly passed the impugnedorders.9.It has to be seen that, although the parties are litigatingagainst each other in two different suits, one filed in the year 2013 andsubsequent filed in the year 2015, however, the petitioners have notfiled any application under Section 10 of the Code of Civil Procedureseeking stay to the subsequent suit. As such, the contentions raised bythe learned counsel for the petitioners in this regard that the subsequentsuit itself is not maintainable are rejected. The petitioners wereentitled to invoke provisions of Section 10 of the Code of CivilProcedure at appropriate stage. In view of the mutation entries reliedupon by the respondents, it appears that, although the parties arelitigating with respect to partition and separate possession, they arehaving possession of their respective portions. 10.Having regard to the mutation entries and the fact ofpossession, the Trial Court has exercised its discretion to grant interiminjunction to protect the possession of plaintiffs. Perusal of theimpugned order shows that, on consideration of all the relevant factors,the Trial Court has granted temporary injunction to protect thepossession of the plaintiffs (respondents) during the pendency of the 7912.16wp(6) civil suit. Further, while deciding the Misc. Civil Appeal, theAppellate Court has also given due consideration to the relevantfactual aspect and observing that, since the defendants failed toestablish joint possession of the suit lands, and by considering the 7/12extract and 8-A extract filed on record, the Appellate Court dismissedthe appeal maintaining the order of temporary injunction. 11.On perusal of the impugned orders passed by the TrialCourt as well as the Appellate Court, it is clear that the orders are wellreasoned. Both the Courts below have given due consideration to thethree essential ingredients for grant of injunction namely, existence ofprima facie case, balance of convenience and irreparable loss. Learnedcounsel for the respondents relied upon a judgment of the Hon’bleSupreme Court dated 30/04/2008 in the matter of Mandati RangannaVs. T. Ramachandra, reported in AIR (SC) 2008 2291 and submittedthat, apart from these three essential conditions, conduct of the partiesis fourth factor which needs to be considered while considering thetemporary injunction. He submits that, since petitioner No.1 hasexecuted sale deed with respect to his share in favour of petitionerNo.2, knowing fully well that he was entitled to sale his share, thestand taken by the petitioners in the civil suit demonstrates their 7912.16wp(7) mischievous conduct. Since this Court is entertaining his writ petitionchallenging the order on temporary injunction application, the issueabout conduct of the parties is not gone into. 12.Having regard to the above mentioned factual and legalaspects, the impugned orders passed by the Trial Court as well as theAppellate Court needs no interference. As such, the writ petition isdismissed. 13.It is clarified here that the observations made in this orderare based on prima facie consideration of the documents whileconsidering the application for temporary injunction. (PRAFULLA S. KHUBALKAR, J.)sjk