Tuesday, 25 April 2017

Precaution to be taken by court while deciding injunction application relating to joint family property

 It   seems   that   the   property   is   a   joint   family
property.  There is no finding recorded by the Courts below

on the question of possession.  The appellate Court has also
failed to record the finding as to whether the plaintiffs are in
possession or the defendant.  The partition deed, if any, has
not been considered containing recital about the possession
of the property.  In view of this, the order impugned suffers
from non application of mind to the relevant aspect of the
matter.   The same cannot, therefore, be sustained and the
matter will have to be sent back to the lower appellate Court
to decide it afresh.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 2026 OF 2016
Sukhdeo Pandurang Bawankule,

V
Vasant Eknath Bawankule,

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
CORAM: R. K. DESHPANDE, J.
DATE    :   7 th DECEMBER, 2016 .
Citation:2017(1) ALLMR555

1] Rule made returnable forthwith.
Heard the matter finally by consent of learned
counsels appearing for the parties.  
2] In   a   suit   simplicitor   for   grant   of   injunction
restraining the defendant from interfering with the possession
of the plaintiffs over the suit property,  the trial Court rejected
the   application   for   grant   of   injunction,   whereas   the   lower
appellate Court has allowed it.  Hence, the original defendant
is before this Court.
3] It   seems   that   the   property   is   a   joint   family
property.  There is no finding recorded by the Courts below

on the question of possession.  The appellate Court has also
failed to record the finding as to whether the plaintiffs are in
possession or the defendant.  The partition deed, if any, has
not been considered containing recital about the possession
of the property.  In view of this, the order impugned suffers
from non application of mind to the relevant aspect of the
matter.   The same cannot, therefore, be sustained and the
matter will have to be sent back to the lower appellate Court
to decide it afresh.
4] In   the   result,   the   writ   petition   is   allowed.   The
judgment and order dated 05.10.2015 passed by the lower
appellate Court in Misc. Civil Appeal No. 29 of 2014 is hereby
quashed and set aside and the matter is remanded back to
the Principal District Judge, Amravati, for recording specific
finding on the aspect of physical possession.
The parties to appear before the lower appellate
Court on 19.12.2016.

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