Partly allowed

Haji Ayyas Baig Anwar Baig Mirza v. Kamlakar Dashrath Wani and Others

Bombay HC1 Feb 2016WP/11352/2015

Case brief

AI extract

What is this about?

The High Court of Bombay at Aurangabad accepted this writ petition to supersede an appellate order restraining the petitioner from enforcing possession. The court directed parties to maintain status quo regarding property possession till the suit's disposal and ordered the trial court to decide the suit within three months.

What did the court decide?

Status quo in possession directed until suit disposal; trial court directed to decide Special Civil Suit No.72/2013 within three months; impugned appellate order substituted.

Haji Ayyas Baig Anwar Baig Mirza Vs Kamlakar Dashrath Wani… — Property and Title | Bombay HC (2016)

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WP 11352/2015

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO.11352/2015

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Haji Ayyas Baig Anwar Mirza

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 - PETITIONER

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 VERSUS

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Kamlakar Dashrath Wani (Shirude)
and others

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 - RESPONDENTS

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*****

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Mr.NL Choudhari, Advocate for petitioner;
Mr.KC Sant, Advocate for Respondent No.1;
Mr.SN Rodge,Adv.h/for Mr. SS Suvarna, Adv.for Resp.2;
Mr.AR Syed, Adv.h/for Mr.SP Brahme, Adv. For Resp.3.

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CORAM : S.S.SHINDE, J.
DATE : 1st February, 2016.

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ORAL ORDER:

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1)Heard. Rule. Rule returnable forthwith.

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This petition takes exception to judgment and order

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dated 14th July, 2015 passed by learned District

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Judge-5, Dhule in Misc. Civil Appeal No.64/2014. The

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present Respondent No.1 is original plaintiff and the

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present petitioner is original defendant No.4 in

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Special Civil Suit No.72/2013 pending on the file of
Civil Judge, Senior Division, Dhule. Respondent No.1

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herein filed the said suit. In the said suit, an
application below Exhibit-5 was filed by the

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2 WP 11352/2015

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plaintiff. The said application seeking injunction
against the petitioner/orig.deft.No.4, came to be
rejected by the trial court. Aggrieved by the said
order, Respondent No.1 filed an appeal being Misc.
Civil Appeal No.64/2014. By the impugned order, the
appellate court allowed the appeal and set aside the
order passed below Exhibit-5 in Special Civil Suit
No.72/2013 and original deft.no.4, i.e. present
petitioner is restrained from enforcing his
possession over the western half portion of the suit
property as described in plaint para 1 till disposal
of the suit. Hence, this petition.

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2)Learned Counsel appearing for the petitioner
submits that the property, in question, is purchased
by the petitioner from original deft.no.1 and in
pursuant to execution of the sale-deed the petitioner
is put in possession of the suit property. He
invited attention of this court to recitals of the
sale-deed and also the written-statement filed by
original deft.no.1 and submits that the original
deft.no.1, who executed the sale-deed in favour of
the petitioner has stated in his written statement
that after execution of the sale-deed, the petitioner

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3 WP 11352/2015

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is put in possession of the suit property. He

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further submits that since then the petitioner is in
possession of the said property. He further invited
attention of this Court to the reasons assigned by
the trial court while rejecting the application at
Exhibit-5 and submits that since the petitioner was
put in possession of the suit property in the year
2011, his possession over the said property needs to
be protected, else it will cause irreparable loss to
the interest of the petitioner.

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3)On the other hand, learned counsel for the
original plaintiff, i.e. Respondent No.1 herein,
relying upon the reasons assigned by the Appellate
court, submits that since the property, which is the
subject matter of the suit, is joint family property,
the original deft.no.1 ought not to have sold the
suit property. He further submits that, even if
recitals of such alleged sale-deed are considered,
there was no question of handing over the possession
of the suit property to the petitioner, which is
joint family property and unless there is partition
and demarcation of shares, the petitioner cannot
claim that, the particular portion of the property

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was possession of the deft.no.1. In absence of such

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partition, he submits that, the Appellate court has
rightly held that, the plaintiff is entitled for
relief as prayed in the appeal and accordingly relief
is granted, therefore, this court may not upset the
finding of fact arrived at by the Appellate court.
Therefore, he submits that the petition may be
rejected.

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4)I have heard the learned counsel for the
petitioner, learned Counsel for Respondent No.1 and
learned Counsel for Respondent Nos. 2 to 4. With
their able assistance, perused the petition,
annexures thereto, order passed by the trial court as
well as Appellate court, the reasons assigned by the
trial court and Appellate court, the documents placed
on record, including the written-statement filed by
the parties.

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5)It appears that the Trial Court has rejected
the application at Exhibit-5 filed by the original
plaintiff and thereafter the Appellate Court, in the
month of July 2015 allowed the Misc. Civil Appeal
filed by the plaintiff. Upon considering the

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material placed on record, it appears from the
written statement filed by Respondent No.1/deft.no.1
that, he has stated in the said written-statement
that, possession of the said property was handed over
to the petitioner. The learned Counsel appearing for
the original plaintiff is right in his submission
that, in absence of any demarcation of the share in

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the property in question, merely because it is
mentioned in the recitals of the sale-deed that, the
possession is handed over, petitioner cannot claim
that, he is put in possession of the suit property.
In my opinion, instead of considering the controversy
at greater length on merits of the matter, since the

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suit is pending before the concerned Court, awaiting
its disposal, in the peculiar facts and circumstances
of the case, ends of justice would be met, if the
parties are directed to maintain status quo as to the
possession of the suit property, as on today till
disposal of the suit, and if the trial court is
directed to dispose of the suit within a period of
three months from today. In the light of above,
following order,

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ORDER

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i)The parties are directed to maintain status

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quo as to the possession of the suit property, as of
today till disposal of the suit;

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ii)The learned Civil Judge, Senior Division,
Dhule is directed to hear Special Civil Suit No.
72/2013, if necessary on day-to-day basis, and decide

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the same, as expeditiously as possible and preferably
within a period of three months from receipt of the
order passed by this Court;

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iii)The impugned order in this petition, i.e.
order dated 14th July, 2015 passed by learned District
Judge-5, Dhule in Misc. Civil Appeal No.64/2014
stands substituted by the order passed by this Court
today;

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iv)The Writ Petition is disposed of. Rule is
accordingly made absolute in aforesaid terms.

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.Parties to act on authenticated copy of this
order.

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 (S.S.SHINDE)
 JUDGE

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bdv/

Haji Ayyas Baig Anwar Baig Mirza v. Kamlakar Dashrath Wani and Others

Case brief

What is this about?

What did the court decide?

Haji Ayyas Baig Anwar Baig Mirza v. Kamlakar Dashrath Wani and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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