On 21th October 2022, the Bombay High Court in a Single bench comprising of Justice Sandipkumar C. observed that “nature of the property cannot be permitted to be changed and for avoiding multiplicity of proceedings, temporary injunction has to be granted for restraining further alienation during pendency of appeal or proceeding only if the party has come with clean hands”. (Umaji Satwaji Shep (Died) Vs. Gulam Mohmood Gulam Dastgir (Died) And Ors.)
Facts of the Case:
The appellants in both the appeals, who are original respondent Nos.3/1 to 3/9 and 4/A to 4/G, have challenged the common order dated 15/01/2021 passed by the learned District Judge-2, Ambajogai (Learned appellate court) Exhibits-34, 40, 44 and 80 in RCA No. 44 of 2016. The application Exhibits-40 & 80 in RCA No. 44 of 2016 were filed by present respondent Nos.1/1 to 1/10, who are respondent Nos. 5/1 to 5/10 in RCA No. 44 of 2016, whereas application Exhibits-34 and 44 in RCA No. 44 of 2016 were filed by present respondent Nos.1-A and 2-A. Under the impugned order, the learned appellate court has allowed all the applications Exhibits-34, 40, 44 and 80 and thereby restrained the present appellants from alienating the suit lands and for creating any third-party interest in the same till final disposal of the appeal. The learned appellate court by relying upon certain photographs in respect of display of board named as 'Satwaji Nagar' on the suit property, came to conclusion that the present appellants were trying to create third party interest in the suit land by developing the same into plots and it would create complications and addition of many parties if those plots are sold. Aggrieved by the Order passed by the Learned District Judge-2, appellants have filed an appeal in the hon’ble court.
Contentions of the Appellant:
The counsel for the appellant submitted that “the predecessor of appellants purchased the suit land, comprising Survey No. 97 to the extent of 16 Acres 24 Gunthas, Survey No. 102 to the extent of 16 Acres 20 Gunthas and Survey No. 134 to the extent of 19.5 Gunthas by way of registered sale deed dated 11/10/1958 and since then the suit land is in possession of the appellants and their forefathers. In earlier three rounds of litigation, it has been established that the appellants are the owners and possessors of the suit land since beginning and the decrees of RCS No. 38 of 2016 and RCS No. 3 of 2001 have attained finality. Earlier to passing of impugned order, the learned appellant court had in fact rejected two applications of the contesting respondents whereby status-quo was claimed, by observing that the appellants are already declared owners and possessors by the competent civil court. Despite there was bar under the principle of res-judicata the learned appellate court decided all these applications for seeking temporary injunction in favour of the original appellants and legal representatives of original respondent No.5 in the appeal. There was a bar for the learned appellate court to decide the subsequent applications for similar relief, especially when earlier applications to that effect, were rejected.” The case of Arjun Singh vs. Mohindra Kumar and others was referred.
Contentions of the Respondents:
The counsel for the respondents submitted that “earlier applications for statusquo fled by the contesting respondents, were not decided on merits but those were rejected being unattended. If the impugned order is set aside, then the appellants will definitely sell the suit land, which will give rise to more complications and may defeat right of present contesting respondents. The principle of res judicata is not at all applicable to the applications for claiming stay to the alienation as every such application can be made on fresh cause of action and by considering the change in circumstances. Moreover, the suit land was in fact in possession of the government and not of the appellants.” The cases of Wander Ltd. and another vs. Antox India P. Ltd, Maharwal Khewaji Trust (Regd.) Faridkot vs. Baldev Dass, Sunil s/o Madanlal Agrawal vs. Jawaharlal s/o Nandlal Chittarke and Prakash Ahuja vs. Ganesh Dhonde and others were referred.
Observations and Judgment of the Court:
The hon’ble court observed that “the record prima facie indicates that ownership of Umaji and Madhav over the suit properties was established twice in the earlier proceedings which remained unchallenged and thereby attained finality. Further, by giving complete go-bye to the earlier proceedings, Azeemunisa Begum and Sayeda Begum fled another suit knowing well that Umaji and Madhav were declared owner of the suit properties by competent civil courts, suppressed those earlier proceedings and came with concocted story of oral gift, which has been negatived by the trial court. I do not find that there is prima facie case established by Azeemunisa Begum and Sayeda Begum. Per contra, it appears that they have suppressed the earlier proceedings despite being party to it and fled RCS No.215 of 1994 on account of new ground of alleged oral gift theory. It is also important to note that if the injunction granted by the learned appellate court is allowed to be continued further, then there will be no end to the present litigation and it will continue for indefinite period leaving the appellants deprived from getting fruits of earlier proceedings. Azeemunisa Begum and Sayeda Begum along with other legal heirs of Ahemad Ali, had adopted written statement earlier fled by Ahemad Ali and as such, they admitted the fact of selling the suit land to Umaji and Madhav. They admitted the fact that the suit properties were sold to the Umaji and
The impugned order passed by the District Court at Ambejogai was quashed and set aside, allowing both the appeals.
Case: Umaji Satwaji Shep (Died) Vs. Gulam Mohmood Gulam Dastgir (Died) And Ors
Citation: Appeal From Order No.15 Of 2021 with Appeal From Order No.16 Of 2021
Bench: Justice Sandipkumar C.
Date: October 21, 2022
Read Judgment ;
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