SUDHIR AMARSINGH SANKLECHA Vs. AMARSINGH RAJMALJI SANKLECHA

JUDGEMENT

(1.) The applicants who are the original plaintiffs are aggrieved by the judgment of the trial Court dated 02.11.2020 in Special Civil Court No.85/2008 by which the suit filed by them for partition, separate possession, permanent injunction, declaration as well as for cancellation of gift-deed dated 21.05.1987 has been dismissed.

(2.) By this application, the original plaintiffs pray that the legal heirs of defendant nos. 6 and the defendant nos.7 be restrained from creating third party rights in the suit property and also from alienating the same during pedency of the appeal.

(3.) Shri J.T. Gilda, learned Senior Advocate for the appellants after referring to the plaint averments as well as the judgment of the trial Court submitted that the appreciation of the evidence of the trial Court was perverse resulting in the finding being recorded that the suit properties were not ancestral properties in the hands of Rajmal. According to him it could not have been held that the defendant no.5-Kasturibai had perfected her title by way of adverse possession in respect of the fields at Wagda. The finding that the present suit was hit by the principles of res-judicata with regard to the property at Shahpur in view of the fact that the decree in Special Suit No.69/1987 was operating was also incorrect. The property at Shahpur was not the subject matter of properties involved in that suit. Moreover, the document dated 01.06.1984 at Exhibit 136 indicating arrangement between the parties was also not registered. In absence of such registration the finding recorded by the trial Court was contrary to law especially in the light of the decision of the Hon'ble Supreme Court in Mohammad Yusuf and Others Versus Rajkumar and Others [2020 SCC Online SC 125]. According to him, the appeal gave rise to various issues and on a proper consideration of the evidence of record, the suit was liable to be decreed. Merely because the trial Court had dismissed the suit the same would not disentitle the applicants from seeking such injunction. For said purpose, he placed reliance on the decision in Maneklal Jainarayanji Sabu Versus Ruprao Ganpatrao Bhonde [2000(4) Mh.L.J. 450].