In the present matter, the original plaintiff No.1
claimed that from the properties of the family, the suit property
had come to him while defendant Nos.1 to 3 claimed that it was
joint property which had not been divided. In such
circumstance, even if defendant Nos.1 to 3 sold what they
claimed to be their share to defendant Nos.4 and 5 during the
pendency of the suit, possession cannot be handed over by them
to the subsequent purchaser without following due procedure of
law. In the matter of "Gajara Vishnu Gosavi" (supra), Hon'ble
Supreme Court held that:-
"11. Thus, in view of the above, the law emerges to
the effect that in a given case an undivided share of a
co-parcener can be a subject matter of sale/ transfer,
but possession cannot be handed over to the vendee
unless the property is partitioned by metes and
bounds, either by the decree of a Court in a partition
suit, or by settlement among the co-sharers."
Thus, even if defendant Nos.1 to 3 could originally
claim to be in joint possession, the subsequent purchasers
cannot simply step into their shoes as far as regards joint
possession of the defendant Nos.4 and 5. They would have to
seek their own remedy. Once defendant Nos.1 to 3 have
admittedly given up their claim of joint possession by executing
the sale deed, the possession of plaintiff of the property, as
clearly appearing from the long standing 7/12 extracts, will have
to be protected. Plaintiffs do make out a prima facie case for
injunction in their favour. The appellants- plaintiffs, in the
application for temporary injunction to the District Judge, raised
apprehension that the defendant Nos.4 and 5 may enter their
names into record of rights on the basis of the alleged sale deeds
in respect of suit property. The plaintiffs expressed
apprehension that they may lose possession of suit property and
so, the defendant Nos.4 and 5 are required to be restrained by
issuing preventive injunction. Plaintiffs claimed that, balance of
convenience is in favour of plaintiffs and in the circumstances, if
injunction is not granted, they will suffer irreparable loss.
The injunction sought is only against respondent
Nos.4 and 5. Looking to the judgments of the Hon'ble Supreme
Court as above, such subsequent purchasers cannot simply push
in the property. The status of defendant Nos.1 to 3 as joint
owners claimed by them was different and cannot be compared
with defendant Nos.4 and 5, who may have purchased share of
defendant Nos.1 to 3. In fact, the suit of plaintiffs claiming that
suit property came to plaintiff No.1 is still in dispute, which is to
be decided in the appeal. Defendants themselves appear to have
claimed that there are other heirs like those of Krishnabai, who
are not made party. Still they appear to have calculated their
share and executed sale deed of undivided property. Even the
claim of defendant Nos.1 to 3 that suit property is joint, the
matter is still to be finally decided and there is no reason why
possession of plaintiffs should not be protected. If the plaintiffs
lose possession of suit property or part of it, (which has not been
divided by metes and bounds), plaintiffs would suffer irreparable
injury. In such circumstance, to avoid further litigation and
looking to the rival claims, balance of convenience lies in favour
of plaintiffs.
15. (A) For the above reasons, the Appeal is allowed with
costs. The impugned order passed by the District Judge is set
aside. Respondent Nos.4 and 5 are restrained by themselves or
anybody on their behalf, from disturbing possession of the
appellants in suit property till decision of Regular Civil Appeal
No.298/2013.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
APPEAL FROM ORDER NO.4 OF 2014 WITH
CIVIL APPLICATION NO.274 OF 2014
Baburao s/o Namdeo Nalwade,
VERSUS
Tukaram s/o Keshav Nalwade,
CORAM: A.I.S. CHEEMA, J.
DATED: 19th March, 2014.
Citation;2015(2) ALLMR277
Print Page
claimed that from the properties of the family, the suit property
had come to him while defendant Nos.1 to 3 claimed that it was
joint property which had not been divided. In such
circumstance, even if defendant Nos.1 to 3 sold what they
claimed to be their share to defendant Nos.4 and 5 during the
pendency of the suit, possession cannot be handed over by them
to the subsequent purchaser without following due procedure of
law. In the matter of "Gajara Vishnu Gosavi" (supra), Hon'ble
Supreme Court held that:-
"11. Thus, in view of the above, the law emerges to
the effect that in a given case an undivided share of a
co-parcener can be a subject matter of sale/ transfer,
but possession cannot be handed over to the vendee
unless the property is partitioned by metes and
bounds, either by the decree of a Court in a partition
suit, or by settlement among the co-sharers."
Thus, even if defendant Nos.1 to 3 could originally
claim to be in joint possession, the subsequent purchasers
cannot simply step into their shoes as far as regards joint
possession of the defendant Nos.4 and 5. They would have to
seek their own remedy. Once defendant Nos.1 to 3 have
admittedly given up their claim of joint possession by executing
the sale deed, the possession of plaintiff of the property, as
clearly appearing from the long standing 7/12 extracts, will have
to be protected. Plaintiffs do make out a prima facie case for
injunction in their favour. The appellants- plaintiffs, in the
application for temporary injunction to the District Judge, raised
apprehension that the defendant Nos.4 and 5 may enter their
names into record of rights on the basis of the alleged sale deeds
in respect of suit property. The plaintiffs expressed
apprehension that they may lose possession of suit property and
so, the defendant Nos.4 and 5 are required to be restrained by
issuing preventive injunction. Plaintiffs claimed that, balance of
convenience is in favour of plaintiffs and in the circumstances, if
injunction is not granted, they will suffer irreparable loss.
The injunction sought is only against respondent
Nos.4 and 5. Looking to the judgments of the Hon'ble Supreme
Court as above, such subsequent purchasers cannot simply push
in the property. The status of defendant Nos.1 to 3 as joint
owners claimed by them was different and cannot be compared
with defendant Nos.4 and 5, who may have purchased share of
defendant Nos.1 to 3. In fact, the suit of plaintiffs claiming that
suit property came to plaintiff No.1 is still in dispute, which is to
be decided in the appeal. Defendants themselves appear to have
claimed that there are other heirs like those of Krishnabai, who
are not made party. Still they appear to have calculated their
share and executed sale deed of undivided property. Even the
claim of defendant Nos.1 to 3 that suit property is joint, the
matter is still to be finally decided and there is no reason why
possession of plaintiffs should not be protected. If the plaintiffs
lose possession of suit property or part of it, (which has not been
divided by metes and bounds), plaintiffs would suffer irreparable
injury. In such circumstance, to avoid further litigation and
looking to the rival claims, balance of convenience lies in favour
of plaintiffs.
15. (A) For the above reasons, the Appeal is allowed with
costs. The impugned order passed by the District Judge is set
aside. Respondent Nos.4 and 5 are restrained by themselves or
anybody on their behalf, from disturbing possession of the
appellants in suit property till decision of Regular Civil Appeal
No.298/2013.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
APPEAL FROM ORDER NO.4 OF 2014 WITH
CIVIL APPLICATION NO.274 OF 2014
Baburao s/o Namdeo Nalwade,
VERSUS
Tukaram s/o Keshav Nalwade,
CORAM: A.I.S. CHEEMA, J.
DATED: 19th March, 2014.
Citation;2015(2) ALLMR277
