Allowed

Popat Shivdas Rakhunde and Anr. v. Kiran Parshuram More

Bombay HC30 Sept 2013WP/3689/2013

Case brief

AI extract

What is this about?

This Writ Petition challenges District Court order granting interim injunction against petitioners in a property suit. The High Court held that with no title or possession proven by the respondent, the injunction was invalid and set aside the order to the extent of such restraint.

What did the court decide?

Impugned order granting interim injunction against petitioners from creating third party rights is set aside.

Popat Shivdas Rakhunde and Anr. Vs Kiran Parshuram More — Property and Title | Bombay HC (2013)

WP3689.2013

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3689 OF 2013

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Popat Shivdas Rakhunde & Ors. .... Petitioners Vs. Kiran Parshuram More ..... Respondent

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Mr. Sandesh Patil i/by Mr. Amol Sonawane, Advocate for the petitioners.

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Mr. V.D. Ghadage, Advocate for the respondent.

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Coram : Smt. R.P. SondurBaldota, J. Date : 30^th September, 2013.

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P.C.

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Rule. Rule made returnable forthwith. By consent of

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the parties, the petition is taken on board for final hearing. Heard the counsel.

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The petitioners are the defendants to Regular Civil Suit

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No.564 of 2011 filed by the respondent. The reliefs sought

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against them in the suit by the respondent are a permanent

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injunction to restrain them from disturbing the respondent’s

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possession of the suit property and declaration that the saledeeds dated 8^th February, 2002 and 4^th October, 2002 executed in favour of the petitioners by the father of the respondent are bogus and not binding upon the respondent. According to the respondent, the two properties under the sale-deeds were ancestral properties and had been in possession of his father until the father’s death on 17^th February, 2011. The father had obtained loan from the petitioners and mortgaged the properties to them towards repayment of loan. After the death of the father, the respondent has been in possession of the properties.

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Based on the above averments in the plaint, the respondent had filed an application seeking interim injunction to restrain the petitioners from disturbing his possession of the suit property as also to restrain them from creating any third party rights over it. The trial Court, by it’s order dated 22^nd March, 2012 dismissed the application on merit holding that

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the respondent is not in possession of the suit property and

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also that he has no title to it. Being aggrieved by that order,

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the respondent approached the District Court by filing Miscellaneous Civil Appeal No.27 of 2012. The District Court disposed off the appeal by it’s order dated 22^nd October, 2012, partly allowing it. The District Court confirmed the finding of the trial Court as regards the possession of the suit property holding that the respondent is not in possession of the property and that the possession has been with the petitioners. It however, proceeded to grant interim injunction to restrain the petitioners from alienating the suit property or otherwise creating any third party interest over it solely on the ground that the same would cause prejudice to the respondent.

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Mr. Patil, the learned counsel for the petitioners submits that the suit filed by the respondent is not only a false suit, but is also a fraud played upon the Court. He points out that the sale-deeds in question are of the year 2002 and the suit

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filed to challenge the same has been in the year 2011. The

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respondent has all along been aware the transaction of the sale. In any case, he was aware of it atleast in the year 2006, when his father filed criminal proceedings alleging that the sale-deeds had been executed in connection with a transaction of loan, which transaction was hit by the Money Lenders Act. In that complaint, the respondent was cited as one of the witnesses. The petitioners came to be acquitted in the criminal proceedings pursuant to the judgment and order dated 18^th December, 2010. Prior to that, in view of disturbance of their possession of the property, the petitioners had filed suits being Regular Civil Suits No. 420 of 2006 and 421 of 2006 for protection of their possession of the respective properties. Both the suits were decreed exparte on 31^st January, 2007. The father of the respondent had challenged the decree by preferring an appeal against it, but could not maintain the challenge as he was unable to pay the costs awarded by the appellate Court for setting aside the exparte

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decree. The father died in the year 2011. Thus the objections

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of the father of the respondent raised either to the transaction

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of sale or possession of the suit properties have not been successful. As if that was not enough, the respondent now changes his stand as regards the nature of the suit property. During the course of arguments on the petition, Mr. Ghadage, the learned counsel for the respondent submitted that the suit property is not an ancestral property but it is the property purchased by the mother of the respondent. This would mean that at the time of execution of sale-deeds in the year 2002, the respondent did not have any right to the suit property. The only person who could challenge the sale of the property to the petitioners was the mother of the respondent. She died in the year 2010. During her lifetime, she had not raised any objection to the transaction of sale in any way. Further, this argument would mean that the case of the respondent in the suit filed by him that the suit property is an ancestral property is a false statement.

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The abovementioned undisputed facts would, prima

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facie, establish that the respondent is neither in possession of the suit property, nor has any title over it. Therefore, the trial Court had correctly dismissed the respondent's application for interim reliefs. Though, the District Court accepted both the findings of the trial Court, it granted an interim injunction to restrain the petitioners from alienating or otherwise creating any third party interest over the same holding that otherwise “it will cause prejudice to the plaintiff and also will cause multiplicity of the suit”. It has further expressed that if alienation is stopped till decision of the suit, no prejudice will be caused to the petitioners.

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Once the facts of the case establish that the respondent has no title to the suit property and the petitioners have become owners thereof vide registered deed of conveyance, an interim injunction as granted could not have been issued against the respondent unless a very strong prima facie case was established by the respondent as regards the challenge to

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the deeds of conveyance. The facts described above do not disclose any such strong case. Besides, there would also be the question of the suit being barred by Law of Limitation. Therefore, the impugned order cannot be sustained. 7. The petition is allowed. The judgment and order dated 22^nd October, 2012 passed by the learned District Judge- I, Pandharpur in Miscellaneous Civil Appeal No. 27 of 2012 is set aside to the extent it grants interim injunction against the petitioners from creating any third party rights over the suit property.

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(Smt. R.P. SondurBaldota, J.)

Popat Shivdas Rakhunde and Anr. v. Kiran Parshuram More

Case brief

What is this about?

What did the court decide?

Popat Shivdas Rakhunde and Anr. v. Kiran Parshuram More

Case brief

What is this about?

What did the court decide?

What the court decided

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