High Court dismissed a writ petition challenging an order restraining a subsequent purchaser from possessing a portion of joint family property. The Court upheld the Appellate Court decision, finding no jurisdictional error.
Petition rejected; no costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1
FARAD CONTINUATION SHEET NO.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD.
WRIT PETITION NO.: 1642 OF 2011
Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders.
Court’s or Judge’s orders.
WRIT PETITION NO.: 1642 OF 2011
***
1. Heard Advocate Shri Gawali for
Petitioner/ defendant. The Respondent No.1/
plaintiff filed a suit claiming that 46 Ares
portion was joint family property and he
sought temporary injunction to restrain the
present petitioners from interfering with his
possession over it. Trial Court rejected
that prayer after noticing that description
of suit property was not very clear as
plaintiff wants in possession about 84 Ares
portion as per 7/12 extract and the 46 Ares
part thereof was not clearly specified. It,
therefore, found that effective order could
not have been passed by it. In appeal filed
by Respondent No.1/ plaintiff, Appellate
Court noticed that the property was joint and
sold by a co-owner i.e. petitioner No.1 to
petitioner No.2, the plaintiff was contending
that being co-sharer and co-owner he had a
2
FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD.
WRIT PETITION NO.: 1642 OF 2011
Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders.
Court’s or Judge’s orders.
right of preemption. Thus, Appellate Court
noticed that a stranger has been introduced
in possession.
2.ShriGawalihascontendedthat
Petitioner NO.2 being a purchaser of specific
portion and as sale deed itself disclosed
that he is put in possession, the Appellate
Court could not have restrained co-owner from
enjoying the possession. The direction
according to him, therefore, restrains
petitioner No.2 from enjoying the possession
of property purchased.
3.If 46 Ares portion is still joint, it is
apparent that Petitioner No.1 could not have
sold a specified portion out of it to
Petitioner No.2. At this stage, Shri Gawali
states that in sale deed description of
property has been given but lateron the same
has been corrected and undivided portion has
been shown to have been sold to petitioner
NO.2.
3
FARAD CONTINUATION SHEET NO.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD.
WRIT PETITION NO.: 1642 OF 2011
Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders.
Court’s or Judge’s orders.
4.The Appellate Court has correctly
appreciated the controversy. The Petitioner
No.2 who is subsequent purchaser and
stranger, therefore, has got right to file
appropriate proceedings.
5.I do not see any jurisdictional error or
perversity. On the contrary, trial Court did
not read the plaint properly and, therefore,
its approach is erroneous. Petition is,
therefore, rejected. No costs.
[B.P.DHARMADHIKARI, J.]
Dated:08/03/2011.
ans/1642
3 issues framed by the court
Whether the Appellate Court erred in allowing a sequester suit against a subsequent purchaser of a joint family property portion.
Whether the trial court committed jurisdictional error by rejecting a suit for temporary injunction due to unclear description of property.
Whether the writ petition challenging the sequester order succeeds.
Petitioner No.1
Respondent No.1/Appellate Court
B.P.DHARMADHIKARI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court