Bhimarya and Others vs Sushilaabai and Others

A.S. Pachhapure, J.—The appellants have challenged the order granting temporary injunction against them from removing stones in Sy. No. 162/5 measuring 01 acre 38 guntas of Minajagi village during the pendency of the suit.

The facts reveal that the respondents have instituted a suit in O.S. No. 10/2014 seeking partition and separate possession of their share in the suit properties inclusive of land Sy. No. 162/5 of Minajagi village. It is averred in the plaint that the suit properties are the joint family properties and from the income of the joint family properties land bearing Sy. No. 162/5 was purchased. An application was filed by the respondents under order XXXIX Rule 1 and 2 of CPC for grant of injunction to restrain the appellants herein from removing shahabad stones from the land Sy. No. 162/5 alleging that the appellants herein are removing the stones without permission from the Government and that the suit property is a joint family property. The appellants are misusing the land and thereby causing irreparable loss. In the aforesaid circumstances a request was made by respondents to grant temporary injunction.

The application was objected by the appellants herein on the ground that the land bearing Sy. No. 162/5 is the property of the 1st appellant and that this was purchased in the year 2006 in the name of his minor son. It is also their contention that there was partition in the year 2000 and after this partition the property was purchased from the income of the 1st appellant. It is their contention that there is no misuse or irreparable loss to any of the parties and therefore, the appellants have sought for rejection of the application.

The Trial Court after hearing both the parties allowed the application of the respondents and granted ad interim temporary injunction. Aggrieved by the said order, the present appeal is filed.

Heard the learned counsel for both the parties. It is the submission of the learned counsel for the appellants that the suit property, i.e., land bearing Sy. No. 162/5 is a self acquired property of the 1st appellant and is purchased in the year 2006 from his own income and therefore, he contends that the respondents cannot seek any interim order. That apart it is his submission that there cannot be injunction against a co-owner as there was a partition in the year 2000. Therefore, he submits that there is no prima facie case and has sought for setting aside the impugned order. He submits that removing the stones from the suit land if stopped much injustice will be caused to him and that he is ready to deposit the amount of the alleged share of profits, in case if he is permitted to remove the stones.

On the other hand the learned counsel for the respondents support the order of the Trial Court and submits that there is prima facie material in their favour and the appellants cannot remove the stones illegally. It is also his further submission that irreparable loss will be caused in case the impugned order is set aside.

It is not in dispute that the respondents instituted the suit for partition and separate possession of their shares in the suit properties. There is specific averment in the plaint that the land bearing Sy. No. 162/5 was purchased out of the joint family income. It is no doubt true that a document dated 28.06.2000 relating to the partition between the male sons, their father and mother is produced. This is an unregistered document. This document cannot be accepted for the reason that by an amendment to section 6 of Hindu Succession Act, it has been specifically provided that unless there is registered deed, the share of female coparceners cannot be questioned. Anyhow as to whether there was a partition or not in the year 2000 is a matter left open for consideration by the Trial Court during the trial. That in the said partition the female members are not the parties. It is relevant to mention that some of the respondents are female members herein and are not parties to the partition deed.

So far as the acquisition of the property by the 1st appellant is concerned, it is in the year 2006. He was aged about 25 years at the time of acquisition of this property. That apart it is his specific case that from his own income he purchased this property. That the respondents have approached this Court contending that the suit property is a joint family property and has been acquired from the income of other properties and admittedly there are other properties which are available. A prima facie presumption in favour of the respondents could be raised. The question as to whether it is self acquired property is again for consideration for the Trial Court in the course of the trial. Therefore, mere existence of sale deed in favour of minor son is not itself at this stage is sufficient to hold that it is a self acquired property.

It is no doubt true that the Court cannot grant injunction against co-owners from the use of the property. The use must be in accordance with law and in the interest of the family members. The appellants have no licence to remove the stone slabs. Anyhow as seen from the contention raised by the learned counsel for the appellants, it is his submission that 1st appellant has applied for licence to remove the stones from the said land and in case if licence is granted he may be permitted and he cannot be restrained. No licence was produced before the Trial Court and it is his submission that application has been filed. What happens of he detains a licence is not a matter for the consideration. So the removal of stones from the land bearing Sy. No. 162/5 is without prior permission would be an illegal act which cannot be alleged and therefore, I am of the opinion that the Trial Court was justified in granting temporary injunction. In view of the aforesaid facts and circumstances and that the appellate Court would be slow to interfere with such orders. The appeal is liable to be dismissed. Consequently, the appeal is dismissed. It is made clear that any order of temporary injunction is subject to modification in case if any parties, make out just grounds to do so.