M F KATARIYA Vs. L H KATARIYA

JUDGEMENT

(1.) THERE arises a twin question of law in this petition. The first question is whether the counter claim under O. 8, R. 6a of Code of Civil Procedure (for short, hereinafter, Code) is limited to money suit only. The second question is whether by way of counter-claim a decree for possession in favour of defendant in a suit filed by the plaintiff for injunction can be legally tenable.

(2.) IN order to appreciate these questions it will be convenient to set out the material facts which have given rise to the controversy between the parties.

(3.) THE property bearing city survey Nos. 851 and 851/a situated at Sangamner, District Ahmednagar was originally owned by joint Hindu family comprising of two brothers, namely, Fulchand and Harakchand. The petitioner is the son of Fulchand whereas, the respondent is the son of Harakchand. The case of the petitioner is that while the family was joint, there was some dispute and, therefore, he, for convenience, started residing separately in order that he should have his own business independently. In the year 1945 he was given the suit property with a right to use latrine situated at the Northern side. Since then he is in possession of the suit property. The petitioner started his own business of clothes in the suit property. It is further case of the petitioner that in the year 1964, the petitioner's father and the respondent made a partition in the family property but it was without consent and knowledge of the petitioner. According to the petitioner that partition was affected with a view to deprive him from his right, title and interest in the suit property. The suit property was, however, allotted to the share of the respondent. Thereafter, the respondent filed a criminal case against the petitioner with alterior motive to take possession of the Suit property. The criminal Court, however directed the parties to establish his right in the Civil Court.