The High Court upheld the concurrent findings of lower courts that granted an injunction under Section 151 CPC to restrain respondents from constructing on disputed property, finding the defendants failed to prove it was self-acquired and irreparable loss was imminent.
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.
JAYARAJAN Digitally signed byJAYARAJAN ANJAKULATHNAIR ANJAKULATH NAIRDate: 2021.11.1518:19:17 +0530
1/7 30 WP-5093.21 (Ch).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5093 OF 2021
Uttam Sadashiv Patil & Anr.
.. Petitioners
Vs.
Sagar Appa Patil & Ors. .. Respondents
Mr. Chetan G. Patil for the petitioners.
Mr. Vinayak Kumbhar for the respondents.
CORAM : SMT. BHARATI DANGRE, J.
DATED : 20TH OCTOBER, 2021.
P.C:-
The property involved in the dispute between the petitioners and the respondents is a parcel of property AJN
2/7 30 WP-5093.21 (Ch).odt
admeasuring 0H 1.40 R, out of total land of 280 sq. meters of plot No.62 in Revision Survey No.1036 situated at Kasaba Karvir, ‘A’ Ward, Kolhapur, with the description as set out in the plaint.
The original plaintiffs (respondent Nos.1 to 3 in the writ petition) instituted a suit for injunction under Order 39 Rules 1 and 2 read with 151 of the CPC to restrain defendant No.1 from constructing over the suit property and from obstructing the peaceful possession of the plaintiffs over it. As per the plaint, the plaintiff Nos.1 is the son of plaintiff Nos.2 and 3 and defendant No.2 is the real brother of plaintiff No.2. The relief sought in the suit is based on a specific pleading that the suit property is joint family property of the plaintiffs and defendant No.2, which is purchased from income of joint agriculture family property situated at Mauje Savarde and Mouje Vadachiwadi. It is averred by the plaintiffs that Defendant No.2 being the eldest brother in the family, the suit property was purchased in his name from Amar Vikas Co-operative Housing Society, for the family and since then the plaintiffs and defendant No.2 are in joint possession of the suit property.
3/7 30 WP-5093.21 (Ch).odt
joint family properties, except the suit property. The plaintiffs filed written statement and counter claim to include the suit property as joint family property and for including it in the schedule of properties for the purpose of partition. Plaintiff No.2 preferred an application to the City Engineer, Karvir, Talathi – Karvir and Taluka Superintendent of Land Record at Karvir in the year 2019 objecting to measurement of the suit property and he also published a notice in the daily newspaper on 19/07/2019 through his advocate that the property is subjudice and no transaction shall be effected qua the said property. Similarly, a notice board to that effect was displayed on the suit property indicating it being subjected to the suit.
AJN
4/7 30 WP-5093.21 (Ch).odt
Recording that the plaintiffs have asserted their right on the suit property being a joint family property, learned Judge has recorded that whether the suit property is joint family property or not cannot be decided in R.C.S. Suit No.70 of 2014, which is a
AJN
5/7 30 WP-5093.21 (Ch).odt
suit for partition and since the defendants have denied the plaintiffs’ claim, it is held that the issue whether the said suit property is a joint family property or self acquired property of defendant No.1 will have to be determined in the present suit. Recording that the plaintiffs have already established the prima facie case that the defendant No.2 has alienated the suit property in favour of defendant No.1 by a registered sale deed and it is held that while defendant No.1 has been constructing the structure over the suit property, the nature of the suit property is in the process of change and the existence of the plaintiffs’ right over the suit property is in danger of being wasted or alienated, is established on record. The learned Judge, therefore, has recorded a prima facie case in favour of the plaintiffs and also considered the serious injury to the rights of the plaintiffs over the suit property, if the construction made by defendant No.1 on the suit property is not stalled. It is held that the factum of irreparable loss and permanent injury are in favour of the plaintiffs and so also the balance of convenience. It is held that before the right of the parties could be effectively adjudicated, the suit property needs to be maintained and on being satisfied that the necessary ingredients to grant injunction, the application vide Ex-5 was allowed on 16/06/2020 and defendant No.1, his agents, servants or anybody claiming on his behalf was restrained temporarily from constructing over the suit property and disturbing the joint possession of the plaintiffs in the suit property till final disposal of the suit.
AJN
6/7 30 WP-5093.21 (Ch).odt
Learned appellate court went a step ahead and held that since appellant No.2 was a Government servant, buying an AJN
7/7 30 WP-5093.21 (Ch).odt
immoveable property, he ought to have obtained some permission from the Government, but it is not placed on record, which has been held against him. Necessarily, the appeal came to be dismissed.
[SMT. BHARATI DANGRE, J.]
AJN
3 issues framed by the court
Whether the High Court could find any legal infirmity in the orders of the courts below granting an injunction under Section 151 CPC to restrain construction on disputed property.
Whether the defendants successfully discharged the burden of proving the property was self-acquired rather than joint family property.
Whether the maintenance of the disputed property pending final adjudication was justified under the balance of convenience test.
1 provisions across 1 enactments
Uttam Sadashiv Patil & Anr.
Sagar Appa Patil & Ors.
Bharati Dangre
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
