Partly allowed

Dilip Motilal Nahar v. Popatlal Motilal Nahar and Others

Bombay HC17 Apr 2013WP/2452/2013

Case brief

AI extract

What is this about?

Writ petition challenging the District Court order allowing sale of property. Court held triable issues exist between split of compromise decree and mutation entry. Disallowed injunction but quashed order allowing sale pending suit trial.

What did the court decide?

Quashed District Court order allowing sale. Confirmed Trial Court order subject to suit decision. Trial Court directed to decide suit within 9 months.

Dilip Motilal Nahar Vs Popatlal Motilal Nahar and Others — Partition | Bombay HC (2013)

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1 WP 2452.13

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 2452 OF 2013

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Dilip Motilal Nahar, Age : 52 Years, Occu. : Agril. & Business, R/o Ghodegaon, Tq. Newasa, Dist. Ahmednagar. .. Petitioner

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Versus

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Popatlal Motilal Nahar, Age : 63 Years, Occu. : Agril. & Business,

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Sau. Sushilabai Popatlal Nahar, Age : 60 Years, Occu. : Household,

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Sanjay Popatlal Nahar, Age : 45 Years, Occu. : Business,

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All R/o Ghodegaon, Tq. Newasa, Dist. Ahmednagar.

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FORMAL PARTIES

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Shantilal Motilal Nahar, Age : 71 Years, Occu. : Agril. & Business,

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Ahsok Motilal Nahar, Age : 52 Years, Occu. : Agril. & Business,

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2 WP 2452.13

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3.	Sau. Bijabai Shantilal Nahar, Age : 63 Years, Occu. : Household,
4.	Su. Kanchanbai Ashok Nahar, Age : 48 Years, Occu. : Household,
5.	Rajkumar Shantilal Nahar, Age : 48 Years, Occu. : Agril. & Business,
	Resp. Nos. 1 to 5 all R/o Ghodegaon, Tq. Newasa, Dist. Ahmednagar.
6.	Sau. Babytai Dhanraj Sancheti, Age : 65 Years, Occu. : Household, R/o Kharakuwa, Tq. & Dist. Aurangabad.
7.	Sau. Pushpatai Navalmal Tated, Age : 53 Years, Occu. : Household, R/o Kingaon Jattu, Tq. Lonar, Dist. Buldhana. ..	Respondents

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Shri R. R. Mantri, Advocate for the Petitioner. Shri V. D. Hon, Advocate for Respondent Nos. 1 to 3.

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CORAM : S. V. GANGAPURWALA, J. DATE : 17TH APRIL, 2013.

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ORAL JUDGMENT :

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. Rule. Rule made returnable forthwith. With the consent of parties taken up for final hearing.

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3 WP 2452.13

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The petitioner has filed suit for partition and separate possession along with an application for temporary injunction restraining the defendants from alienating the suit property. Said application is allowed. The present respondents filed an appeal before the District Court. The District Court partly allowed the appeal and confirmed the order of the Trial Court in respect of the properties except the property bearing gut No. 124/3 which was allowed to be sold by the present respondent Nos. 1 to two persons. The said order is assailed by the plaintiff in the present writ petition.

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Shri Mantri, the learned counsel for the petitioner submits that in the year 1971 suit bearing R.C.S. No. 39/1971 was filed for partition and separate possession in which the present petitioner and the respondent No. 1 were parties. The said suit was compromised and a compromise decree came to be passed. At the time of passing of said decree, the present petitioner was minor. Even as per said compromise decree land gut No. 124 was allotted to the share of petitioner and vide the impugned order the said property is allowed to be sold by the respondent No. 1 to third party. The learned counsel submits that, the same would create multiplicity of litigation and right of the petitioner would be impaired. The learned counsel further contends that, the

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4 WP 2452.13

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respondent is relying on the order U/Sec. 85 passed by the Tahsildar in the year 1979. In the year 1979 also the petitioner was minor. Under any circumstance the compromise decree being passed by the Court of competent civil jurisdiction, the same would be binding. According to the learned counsel, even the present respondent No. 1 in the written statement accepted about the compromise decree in R.C.S. No. 39/1971. The learned counsel states that, the same has been acted upon.

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Shri Hon, the learned counsel for the respondent Nos. 1 to 3 submits that in the year 1979 partition had taken place U/Sec. 85 of the Maharashtra Land Revenue Code and as per the same land gut No. 124/3 is allotted to Sushilabai Popatlal. The respondent No. 1 has every right to sale the said property. The learned counsel further submits that, earlier also three suits were filed after the said compromise decree, in none of the suits the plaintiffs therein could get relief. The learned counsel submits that the mutation entry is effected 20 years back. The title is perfected by the prescription. The learned counsel relies on the judgment of the learned Single Judge of this Court in a case of Abasaheb Bali Gharge and another Vs. Balaji

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Ramhari Gharge reported in 1995(1) Bom. C. R. 542 . According to the learned counsel, there are various other

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5 WP 2452.13

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properties. The respondent No. 1 is in financial crisis. He has to repay the loan, as such property is required to be sold. This aspect has been rightly considered by the District Court. The District Court has considered the equities.

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With the assistance of learned counsel I have gone through the orders. The moot question is whether land bearing gut No. 124/3 is allotted to the plaintiff and whether the partition took place pursuant to the compromise decree in R.C.S. No. 39/1971. In the written statement present respondent No. 1 has not disputed the compromise decree in R.C.S. No. 39/1971. On the contrary, has relied on the same. If said compromise decree is perused which is produced on record, land gut No. 124 seems to have been allotted to the minors of which one is the plaintiff.

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At this stage the Court has only to consider whether there are triable issues in the suit. The respondent No. 1 is claiming on the basis of mutation entry effectuated pursuant to order passed by the Tahsildar as against the same the petitioner relies on the compromise decree effectuated before the Court. A compromise decree is nothing but contract between the parties super imposed by the seal of the Court.

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6 WP 2452.13

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In view of the fact that, at this stage triable issues are involved, it would not be appropriate to allow the parties to deal with the property and to safeguard the subject matter of the lis.

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Shri Mantri, the learned counsel submits that, as the partition had taken place in the year 1971, the petitioner would not have any objection if the respondent No. 1 sales the property which was allotted to his share pursuant to said compromise decree in R.C.S. No. 39/1971.

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In the light of the above, there would not be any injunction as against the respondent No. 1 to sale the property which was allotted to his share in compromise decree in R.C.S. No. 39/1971. The same would be subject to decision of suit and without prejudice to the rights of the parties to the suit.

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In the result, the impugned order passed by the District Court to the extent of allowing sale of property bearing gut No. 124/3 is quashed and set aside, and the order of the Trial Court passed below Exhibit 05 is confirmed with aforesaid modification as observed in para supra.

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7 WP 2452.13

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Considering the relations between the parties and the fact that the pleadings are complete and as contended the issues are also framed, the Trial Court shall decide the suit as expeditiously as possible and preferably within nine (9) months from today.

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Needless to state the observations made by this Court and the Courts below at the time of deciding Exhibit 5 are prima facie in nature and the Trial Court shall decide the suit on its own merits on the basis of evidence adduced by the parties dehors the observations made hereinabove and the Courts below.

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Rule is made absolute in above terms. No costs.

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Sd/-

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[ S. V. GANGAPURWALA, J. ]

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bsb/April 13

Dilip Motilal Nahar v. Popatlal Motilal Nahar and Others

Case brief

What is this about?

What did the court decide?

Dilip Motilal Nahar v. Popatlal Motilal Nahar and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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