This court dismissed a writ petition challenging a first appellate court order that had granted a temporary injunction in a succession dispute. The court held there was no jurisdiction to interfere with the appellate finding regarding possession and the propriety of the injunction.
Writ petition dismissed with no order as to costs.
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Wp486-13.order
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.486 of 2013
Bandu s/o Ramrao Pachpor and another
...Versus...
Ramesh s/o Kisanraol Gulhane
Mr. U. J. Deshpande, counsel for petitioner Mr. P. S. Raut, counsel for respondent.
CORAM : SMT. VASANTI A. NAIK, J. DATE : 24th April , 2013.
By this petition, the petitioner impugns the judgment passed by the first appellate court on 1.1.2013, reversing an order passed by the trial court and holding that the respondent-plaintiff was entitled to grant of temporary injunction.
The respondent is the original plaintiff. The respondent is the legal heir of one Onkar Gulhane. Onkar Gulhane expired on 1.11.2008. It is the case of the plaintiff-respondent that Onkar Gulhane had executed a Will making a bequest of the suit property in favour of the respondent.
The petitioners-defendants resisted the claim of the plaintiff. It was the case of the defendants that Onkar had executed a Will on 11.10.2008 making a bequest of the suit property in favour of his wife Vimalbai. It was pleaded by the petitioners-defendants that Vimalbai wanted to sell the suit property in favour of the petitioner and the sale deed was also prepared. It was pleaded that
Wp486-13.order
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though the sale deed could not be executed, the petitioners were in possession of the suit property.
On an appreciation of the material on record, the trial court rejected the application filed by the respondent-plaintiff for grant of temporary injunction. The first appellate court, however, reversed the finding recorded by the trial court and allowed the misc. civil appeal filed by the respondent-plaintiff. The judgment of the first appellate court is impugned in the instant petition.
On hearing the learned counsel for the parties and on a perusal of the impugned judgment, it appears that there is hardly any scope for interference with the judgment in exercise of the writ jurisdiction. The first appellate court considered the documents which were ignored by the trial court while rejecting the application filed by the respondent-plaintiff for grant of temporary injunction. The first appellate court held that the police had seized the crop from the petitioners-defendants after a complaint was filed by the plaintiff in the police station and the crop was returned to the plaintiff. The first appellate court also considered the letter written by the Talathi to the Tahsildar on 4.11.2011 which showed that the suit property was in possession of the respondentplaintiff. The first appellate court considered the 7/12 extract for the year 2011 which prima facie showed that the respondent-plaintiff was in possession of the suit property at the time of institution of the suit. Moreover, the respondent-plaintiff had filed a civil suit against Vimalbai restraining Vimalbai from alienating the suit
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property and a temporary injunction was granted in favour of the respondent-plaintiff restraining Vimalbai from alienating the same. On a consideration of the relevant material, the first appellate court rightly held that the respondent-plaintiff was in possession of the suit property and the trial court had erroneously rejected the application filed by the respondent for grant of temporary injunction. The order appears to be just and proper and calls for no interference. The judgment reported in AIR 2012 SC 1727 and relied on by the counsel for the petitioners cannot be made applicable to the facts of this case.
Since there is no merit in the writ petition, the same is dismissed with no order as to costs.
JUDGE
Hirekhan
1 issue framed by the court
Whether the writ petition challenging the first appellate court's order granting a temporary injunction calls for interference.
Colour shows how this judgement treated each authority
AIR 2012 SC 1727Distinguished¶21
Bandu s/o Ramrao Pachpor
Ramesh s/o Kisanraol Gulhane
Vasanti A. Naik
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
