NARAYAN SHANKARRAO JARAG Vs. SULOCHANA PIRAJI POL

JUDGEMENT

(1.) THE Petitioners and Respondent No.2 are brothers. There is a property belonging to them identified as Plot No.11 R.6. No.699/1 situated at B-Ward, Kolhapur, admeasuring 65' x 80' on which there is a shed which has been constructed and is used for residence. The 7 x 12 extract shows that the property stands in the name of the Petitioners and Respondent No.2.

(2.) THE Respondent No.2 by a deed of sale dated 30th September, 1991 purportedly sold the property to Respondent No.1. The Respondent No.1. The Respondent No.1 on 6th January, 1991 published a Public Notice to the effect that he had purchased the property. The suit came to be instituted on 20th January, 1991. An application for temporary injunction was also filed along with the plaint. The trial Court i.e. the IInd Joint Civil Judge granted exparte temporary injunction on 20th January, 1991 in favour of the petitioners and confirmed the same by his order dated 24th April, 1992. By the order passed on Exhibit 5 the trial Court restrained the Defendants and any person acting through them from disturbing the Plaintiffs' (Petitioners') joint possession over the suit property during the pendency and final disposal of the suit. While disposing of the application for temporary injunction the trial Court relied on the 7 x 12 extract of R.S.No.699/1, which showed names of petitioners and Respondent No.2. The trial Court further held that there was nothing on record to show that the partition had been effected between the petitioners and the Respondent No.2 of their shares in the suit property. The trial Court held that one co-owner cannot alienate part of the property without express or implied consent of the other co-owners as the property was joint and the no individual member could say that he had a definite share in the joint property. The trial Court further held that it could not be said the Respondent No.1 is a bonafide purchaser. The trial Court, therefore, proceeded to hold that the petitioners have made out a prima facie case and that as they are joint owners the balance of convenience was in their favour and irreparable loss and injury would be caused to them if the injunction was not granted and for the said reasons he confirmed the exparte temporary injunction.

(3.) SHRI Dalvi, the learned Counsel appearing for the petitioners contends that the Appellate Court misdirected itself in law in reversing the order of the trial Court. He contends that it is no doubt true that possession is an important fact in so far as the grant of injunction is concerned. It is his submission, however, that in the present case the petitioners and Respondent No.2 are joint owners of the property and even if the Appellate Court had come to the conclusion that the Petitioners were not in possession nevertheless the Appellate Court had to consider that the Respondent No.2 could not have transferred their share in the property in favour of the Respondent No.1 nor could the Respondent No.1 acquire title in their share without they being parties to the sale deed. It is, therefore, his contention that the Appellate court atleast should have restrained the respondents from transferring, alienating or changing the nature of the suit property. It is his further case that the evidence on record clearly shows that the three brothers were in joint possession. That the 7 x 12 extract would raise a presumption in favour of the persons in whose names the entries are recorded. That this presumption could be rebutted only by documentary evidence. That the Respondents have nowhere pleaded any fraud in so far as the entries are concerned and as such the entries being valid the Court ought to have come to the conclusion that presumption of possession was in favour of both the petitioners and Respondent No.2 and as such the possession could not exclusively be that of the Respondent No.2. He points out that even if some mutation entries have been carried out that mutation is subsequent to the filing of the suit and is of no consequence. The learned Counsel contends that for the aforesaid reasons the order of the Appellate Court has to be set aside and the order of the trial Court has to be restored.