Jitendra Pandurang Chaudhari & Ors. v. Moreshwar Dinkar More & Ors.

2 Respondent Nos.[1] to 5 have instituted Special Civil Suit No.1045 of 2018 in the Court of Civil Judge Senior Division, Pune, essentially seeking partition of the suit properties. As a consequence of relief for partition, various sale transactions by which some of the suit properties are alienated, have also been challenged in the suit. There are as many as 53 Defendants to the suit and numerous properties. However, for the katkam 15/28 purpose of determining the validity of the impugned order of temporary injunction dated 10 December 2018, what is relevant is only one suit property bearing Gat No.97, village Koregaon Mul, taluka Haveli, District Pune. Also, only back to back two transactions in respect of land bearing Gat No. 97/2, being sale deed dated 4 April 2016 executed by Defendant Nos. 2 to 9 in favour of Defendant No.1 and the sale deed dated 1 November 2018 executed by Defendant No.1 in favour of Defendant Nos.13, 14 and 15 (Petitioners herein), are relevant.

3 By the order impugned in the present Appeal, the Trial Court has restrained Defendant Nos.13 to 15 from creating any third party interest over the land bearing Gat No.97 during pendency of the suit. Aggrieved by the order dated 10 December 2018, two appeals have been filed. Appeal from Order No. 121 of 2019 is filed by Defendant Nos. 13 to 15 and Appeal from Order (Stp) No. 21532 of 2022 has been filed by Defendant No. 1.

4 Considering the narrow controversy involved in the present Appeals, it is not necessary to narrate facts in detail. One Tukaram More allegedly had three sons, Bapu, Dagdu and Dinkar. Appellants dispute relationship of Dinkar as Tukaram’s son. It is Plaintiff’s case that various properties at village Dasve, Tal. Mulshi, District Pune are joint family properties. That Tukaram’s son-Bapu More was the Karta of the joint family. Some of the properties of the joint family at village Dasve were acquired for construction of a Dam, the land at Gat No.97/2 admeasuring katkam 16/28 2H 2R at Village Koregaon Mul, taluka Haveli, District Pune, came to be allotted in the name of Bapu More in the year 1986 as project affected person. It is Plaintiffs’ case that even this land bearing Gat No.97/2 allotted in the name of Bapu More as project affected person is the joint family property and that there has been no partition of various joint family properties.

5 Plaintiffs are children and legal heirs of Dinkar More. They claim share in various suit properties including the property bearing Gat No.97/2. The legal heirs of Bapu More (Defendant Nos. 2 to 9) executed sale deed dated 4 April 2016 in respect of various properties including Gat No.97/2 in favour of Defendant No.1. Defendant No.1 in turn sold the property bearing Gat No.97/2 in favour of Defendant Nos.13 to 15 (Appellants) in the year 2018. Plaintiffs have accordingly instituted Special Civil Suit No.1045 of 2018 seeking partition of suit properties as well as setting up a challenge to various sale deeds. Plaintiffs filed application for temporary injunction inter alia to restrain Petitioners from creating third party rights in respect of the land bearing Gat No.97/2. When the application for interim injunction came up for hearing, a purshis was filed by Plaintiffs pressing the relief of temporary injunction only in respect of land bearing Gat No. 97/2 against Defendant Nos.13 to 15 (Appellants) while not pressing the same against rest of the Defendants. The application for temporary injunction was resisted by Defendant Nos. 13 to 15 (Appellants). Defendant No.1 assisted them in defending the application for temporary injunction. By order dated 10 katkam 17/28 December 2018, the Trial Court has proceeded to allow the application for temporary injunction and has restrained the Defendant Nos.13 to 15 (Appellants) from creating any third party interest over the suit property bearing Gat No.97/2 and from carrying out construction thereon. Defendant Nos. 13 to 15 (Appellants) have filed present Appeal challenging the order dated 10 December 2018.

6 Appearing for the Appellants, Mr. Apte the learned Senior Advocate would submit that Dinkar’s relation with the family is in serious dispute. He would invite my attention to the responses filed by various Defendants to application for temporary injunction in which those Defendants specifically denied the assertion that Dinkar More is the son of Tukaram More or brother of Bapu More and Dagdu More. That since Dinkar’s relationship with the More family is itself in dispute, no prima facie case can be said to have been made out for grant of any injunction. He would further submit that the property bearing Gat No.97/2 was allotted in the name of Bapu Tukaram More by the Collector vide order dated 20 December 1986 and for 29 long years, neither Dinkar nor his legal heirs (Plaintiffs) disputed allotment of the land in the name of Bapu Tukaram More alone. That the dispute was created only after sale deeds in question were executed in the years 2016 and 2018.

7 Mr. Apte would further invite my attention to the application for grant of temporary injunction filed in partition suit bearing Regular Civil Suit No. 888 of 2016 by Dinkar Tukaram More. He would submit that though injunction was sought to restrain Defendants therein from katkam 18/28 alienating the suit properties (which included land at Gat No.97/2) no injunction has been granted in that Suit. That therefore Trial Court could not have granted any injunction in subsequently filed Special Civil Suit No.1045 of 2018. He would further submit that the second suit is in fact not maintainable in the light of pendency of first suit for very same purpose. That though the issue of maintainability of suit is not the subject matter of Appeal, the same would indicate atleast absence of any prima facie case in favour of Plaintiffs to claim any interim injunction.

8 Mr. Apte would further submit that the Plaintiffs selectively pressed injunction against the Appellants while not pressing any relief against other Defendants in respect of other suit properties. That such selective approach on the part of the Plaintiffs would indicate lack of bonafides thereby disentitling them from the equitable relief of temporary injunction. That the only document produced by Plaintiffs to prove relationship of Dinkar with Bapu is Gram Panchayat letter which is subsequently disowned by the Gram Panchayat itself. That in the order of allotment made in favour of Bapu, the land bearing Gat No.97/2 is shown to have been allotted in his personal capacity and not as a Karta of joint family. That the sale deed dated 4 April 2016 executed in favour of Defendant No.1 was after following due procedure and post obtaining an order for deletion of entry relating to new tenure and payment of nazrana. Lastly, Mr. Apte would contend that the balance of convenience lies against Plaintiffs, who did not raise any dispute regarding land bearing Gat No.97/2 for 29 long years. That the temporary injunction is katkam 19/28 causing irreparable loss to Appellants and to subsequent transferees also. He would pray for setting aside the order dated 10 December 2018.

9 Mr. Nikte, the learned Counsel would appear on behalf of Appellant in Appeal (Stamp) No.2153 of 2022 (Defendant No.1). He would adopt the submissions canvassed by Mr. Apte. Additionally, he would submit that even if Dinkar is assumed to be the brother of Bapu, no material is placed on record to indicate that the land bearing Gat No.97/2 is a joint family property. On the contrary, the allotment order of 1986 proves beyond any iota of doubt that the land is self-acquired property of Bapu. He would also invite my attention to 7/12 extract in respect of acquired land at village Dasve to show that even the said land was in the sole name of Bapu Tukaram More without any entry to the effect that the same was joint family property. Mr. Nikte would also invite my attention to mutation entry No.2797, by which names of legal heirs of Bapu Tukaram More were mutated to land bearing Gat No.97/2 during the year 1999 by rejecting the objection raised by Dinkar. Lastly, Mr. Nikte would contend that there was gross delay on the part of Plaintiffs in claiming relief and in view of provisions of section 52 of the Transfer of Property Act, the Trial Court ought to have rejected the equitable relief of injunction.

10 Mr. Jamil Shaikh would appear on behalf of Respondent Nos.[1] to 5 (Plaintiffs) and would support the order passed by the Trial Court. He would submit that the land bearing Gat No.97/2 was allotted in the name of Bapu Tukaram More in his capacity as Karta of joint family in lieu of katkam 20/28 acquisition of the joint family property at village Dasve. That taking benefit of illiteracy of Dinkar, Bapu got his own name mutated to the record of rights of the acquired property, which resulted in allotment of alternate land exclusively in the name of Bapu. So far as the relationship of Dinkar being son of Tukaram and brother of Bapu and Dagdu is concerned, he would invite my attention to the application dated 10 January 2014 signed by various family members including Appellants in which they admit relationship of Dinkar as son of Tukaram and brother of Bapu. He would submit that the Trial Court has passed reasoned order and that no case is made out for interference by this Court. He would pray for dismissal of the Appeal.

11 Rival contentions of parties now fall for my consideration.

12 Appellants have challenged order granting limited injunction in favour of the Plaintiffs by which the Appellants have been restrained from creating any third party rights over the property bearing Gat No.97/2 by alienating, transferring or selling the same or from carrying out any construction thereon during pendency of the suit. The temporary injunction has been granted on 10 December 2018 and the said order continues to operate for the last about five years, without being varied in any manner by this Court.

13 For demonstrating that no prima facie case was made out by Plaintiffs for grant of interim injunction, Appellants have strenuously katkam 21/28 argued two points. Firstly, that Dinkar is not the son of Tukaram, and therefore, not a member of joint family. Secondly, the property bearing Gat No.97/2 is not a joint family property, but a self-acquired property.

14 So far as the first point of dispute about relationship of Dinkar with the family is concerned, it is submitted that no evidence was produced by Plaintiffs to prove that Dinkar is Tukaram’s son or Bapu’s brother. It is contended that the relation is sought to be established on the basis of a solitary document, being certificate of Gram Panchayat, village Dasve, taluka Mulshi, District Pune issued on 24 July 1992 stating that Tukarm Vithal More died 40 years ago and he had four sons and two daughters including Dinkar Tukaram More. It is contended that Gram Panchayat does not have jurisdiction, power or authority to certify heirs of deceased Tukaram More. Realizing the said mistake, Gram Panchayat subsequently issued certificate dated 17 October 2018 clarifying that it does not have power to issue any certificate or information with regard to heirs of Late Tukaram Vithal More. It is contended that since the certificate dated 24 July 1992 is disowned by the Gram Panchayat, the solitary document sought to be produced by Plaintiffs in support of their claim of Dinkar being son of Tukaram and brother of Bapu is disproved. To counter this submission, the learned Counsel for Respondent Nos.[1] to 5 (Plaintiffs) has placed reliance on letter dated 10 January 2014 signed by various members of More family signed by Ramesh Dagdu More, Eknath Dagdu More, Rahibai Dagdu More, Kalpana Dilip More, Shrikant Dilip More, Prashant Dilip More and Dinkar Tukaram More addressed to the katkam 22/28 Tehsildar, Taluka Haveli, District Pune. The subject matter of the letter is regarding partition of land bearing Gat No.97/2. The application states that Bapu Tukaram More was Karta of joint family and the property bearing Gat No.97/2 is the joint family property. In that letter, there is a specific statement that the property was being jointly owned. The application further stated that Bapu, Dagdu and Dinkar are brothers. Thus in addition to the Gram Panchayat certificate, there appears to be some admission by other family members of More family about Dinkar being brother of Bapu and Dagdu. Interestingly, the application is signed by Kalpana Dilip More, Shirkant Dilip More and Prashant Dilip More who are children of Dilip Bapu More, who in turn is son of Bapu Tukaram More. Prima facie it appears that they had agreed for partition of Gat No.97/2 with land admeasuring 67.33 R being granted to Dinkar’s share. The exact impact of the letter dated 10 January 2014 shall be examined by the Trial Court at the final hearing of the suit. However, so far as relationship of Dinkar with More family is concerned, there appears to be a prima facie admission on the part of the other family members that Dinkar is the brother of Bapu and Dagdu and son of Tukaram.

15 Though Mr. Apte has taken me through the Reply filed by the Defendant Nos.[1] and 8 to the application for temporary injunction, I find that apart from making a vague denials about relationship of Dinkar with More family by those Defendants, there is no specific stand taken even in those replies that Dinkar is not the brother of Bapu and Dagdu or son of Tukaram. More interestingly, in the Written Statement filed by the katkam 23/28 Appellants, no defence is taken that Dinkar is not the son of Tukaram. The Trial Court therefore cannot be faulted for recording a finding about absence of denial on part of Defendants about relation between the three brothers Bapu, Dagdu and Dinkar.

16 Coming to the next aspect of the nature of property at Gat No.97/2, it is common ground that the said land is allotted exclusively in the name of Bapu in his capacity as project affected person by way of order dated 26 December 1986 in lieu of acquisition of property at village Dasve, Taluka Mulshi, District Pune. It is Appellants’ contention that the acquired property at village Dasve was Bapu’s self-acquired property. However, no document is placed on record to indicate the manner in which Bapu acquired title in land at Village Dasve. Reliance is placed on Mutation Entry No.39 to show that the land at village Dasve was held by Bapu as “jungle vahivat” (forest possession). However, the said document would not ipso facto prove acquisition of right, title or interest by Bapu in those properties in his exclusive name. On the contrary, it is the case of the Plaintiffs that the acquired property was joint family property and therefore, the allotted land would also become joint family property. This is something which would be decided by the Trial Court at final hearing of the suit. However, for the purpose of deciding the application for temporary injunction, it appears that Appellants could not prima facie prove before the Trial Court that either the acquired property or the allotted property bearing Gat No.97/2 is a self-acquired property of Bapu. katkam 24/28