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RCS No.215/2017
Smt. Bhagibai B. Bhoir & Ors.
Vs. Ms. Spartan Development Corp. & Ors.
Exh.05
ORDER BELOW EXH.1

This application filed by plaintiffs under O.39, R.(1) & (2) read with Sec.151
of the Code of Civil Procedure, 1908. Plaintiffs prayed to restrain defendant no.1 to 3 and
their agents, servants, employees and any other claiming through or under him from_
creating third party interest in suit properties and to restrain them from disposing of suit
properties and to restrain to develop suit properties by constructing any structure upon the
suit properties or sanction any plan upon suit properties till disposal of this suit.

2. Plaintiffs contended that Shri Pandurang Keshav Patil was the owner of the
land (i) old Survey No.114, New Survey No.99, Hissa No.10, admeasuring 6.1 gunthas,
equivalent to 610 sq.mtr. and (ii) Old Survey No.123, New Survey No.108, Hissa No.01,
admeasuring 12.9 gunthas, equivalent to 1290 sq.mtr., both properties situated at Revenue
village Khari, Tal. & Dist. Thane, within the limits of Mira Bhayandar Municipal
Coporation and registration and sub-registration District of Thane, hereinafter referred as
“Suit Properties”. As per plaintiffs, Shri Pandurang Keshav Patil expired on 17 th July
2007, his wife expired prior to death of Late Shri Pandurang Keshav Patil, leaving behind
his two daughters and five sons i.e.

(1) Smt. Bhagibai Bhalchandra Bhior (Plaintiff No.1),

(2) Smt.bhimabai Prabhakar Patil (Defendant no.4)

(3) Shri Vasudev Pandurang Patil (Deceased son)

(4) Shri Anant Pandurang Patil ( Plaintiff No.8)

(5) Shri Yashwant Pandurang Patil (Plainitff No.2)

(6) Shri Krushnakant Pandurang Patil (Defendant no.10)

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RCS No.215/2017
Smt. Bhagibai B. Bhoir & Ors.
Vs. Ms. Spartan Development Corp. & Ors.
Exh.05
(7) Shri Vithoba Pandurang Patil (Deceased son)

Except these late Pandurang Keshav Patil have no other legal heirs and representatives,
accordingly by Mutation Entry No.523 their names appear in the Revenue record of suit
properties. According to plaintiffs they are jointly having 57.14% share of suit properties.
As per plaintiffs, suit properties are ancestral properties of Late Pandurang Keshav Patil and
after his death, it belong plaintiffs alongwith defendant no.4 to 10 having undivided right,
title and share in suit properties.

3. Plaintiffs further contented that on 25th September 2014, Adv. Shri Suraj N.
Naik published a public notice in respect of suit properties stating that Late Pandurang
Keshav Patil and others vide Agreement dated 17 th December 1986, agreed to sell suit
properties to defendant no.2 and pursuant to said agreement they also executed Power of
Attorney in favour of Defendant no.2. On 25th April, 2014, Shri Yashwant Pandurang Patil
and others has executed Registered Deed of Conveyance in favour of Defendant no.2, in
fact they have not executed any agreement or registered the same in favour of defendant
no.2 or any other person. As per plaintiff said documents are bogus upon which defendant
no.1 to 3 recorded their names in the Revenue records of suit properties, illegally, by
Mutation Entry No.698, without following due procedure of law. Therefore, prayed for
injunction against them.

4. Defendants no.1 to 3 filed say and strongly objected said application by stating
that plaintiffs filed present suit in collusion with defendants no.4 to 10, plaintiffs have not
come with clean hands. Defendant no.1 purchased suit properties from plaintiff no.1, 2, 4, 8
and 10 for consideration by venturing into agreement and irrevocable power of attorney
which are registered also. As per these defendants, they are in possession and plaintiffs were
already having knowledge about it then also they come together with defendant no.4 to 10
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RCS No.215/2017
Smt. Bhagibai B. Bhoir & Ors.
Vs. Ms. Spartan Development Corp. & Ors.
Exh.05
to fetch more money from them. These defendants further contended that the suit is barred
by Law of Limitation. They lastly prayed to reject the application.

After going through aforestated and hearing both parties at length, following points arise for
my determination and my findings are as under for the reasons stated hereinafter:-
Sr.No. Points Findings
1. Whether plaintiffs prove prima-facie case in their favour? Yes.
2. Whether balance of convenience lies in favour of plaintiffs? Yes.
3. Whether plaintiffs prove that they would suffer irreparable Yes.
loss, if no temporary injunction is granted?
4. What order? Temporary
Injunction is
granted.

REASONS

As to point nos.1 to 3:-

5. In order to get temporary injunction, plaintiff has to prove prima-facie case and
balance of convenience in her favour and she would suffer irreparable loss if no
temporary injunction is granted. At the outset, relationship amongst the plaintiff and
defendant no.4 to 10 is not disputed and also that plaintiffs are also legal heir
alongwith other heirs. It is also not disputed that their father Pandurang Keshav Patil
was original owner of suit properties.

6. Plaintiff came with a case that, suit properties originally belongs to father of plaintiffs
and defendant No.4 to 10. They all are having their shares in the ancestral suit
properties. ***According to the plaintiff, she, defendant no.6 and mother of
defendant no.7 to 10 being daughters have 1/6 th share in the suit properties despite of
that defendant Nos.4 to 10, after taking money, released their right over the suit
properties in his favour vide release deed dated 06/08/2010 in favour of defendant
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RCS No.215/2017
Smt. Bhagibai B. Bhoir & Ors.
Vs. Ms. Spartan Development Corp. & Ors.
Exh.05
No.4 and 5 who alongwith defendant no.11 and 12 vide sale-deed dated 26/05/2010
No.6760/2010 and 6761/2010. She also filed false death certificates and affidavit as
alleged by her. It can be seen prima facie that defendants made false and bogus
document being death certificate of the plaintiff and defendant no.6 and also
daughters names were not mentioned in the family pedigree.

7. It was contended by the plaintiff that when there is no reference about the separation
of the co-purchasers in that event, co-purchasers of the suit property are also
necessary parties to the suit and unless and until their shares have been separated, the
share of the plaintiff and defendant no.6 and mother of defendant no.7 to 10 cannot
be worked out and therefore, the suit may suffer for the non-joiner of necessary
parties and therefore, the plaintiff made defendant no.13 as party. As per the plaintiff
suit properties were of ancestral nature and therefore, defendant no.4 who was elder
in the family paid amount and his name was mentioned in the revenue entries being
Karta of the family but this does not gave him right to sale shares of other legal heirs.
According to the defendant No.13, he is bona fide purchaser of the said property as
he purchased property from defendants and defendant no.4 who was having M
certificate in his name and also obtained required permission for sale of suit
properties.

8. Defendant No.13 challenged the suit of the plaintiff on the ground that the plaintiff
failed to prove that suit properties are ancestral one. I would like to point out here that
the advocate for the plaintiff argued that suit properties were having her grand-
father’s name in the 7/12 extract, though advocate for defendant no.13 stated that
such document cannot be considered as proof of ownership as they are only meant for
a fiscal purpose, then also, it prima facie shows possession and on face of it, the
document shows that earlier property was of joint family property, though it will be
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RCS No.215/2017
Smt. Bhagibai B. Bhoir & Ors.
Vs. Ms. Spartan Development Corp. & Ors.
Exh.05
decided on merit at later stage, after taking evidence to that effect. Prima facie it
seems that suit properties are ancestral one, therefore, defendant no.4 and 5 were also
having share alongwith father of the plaintiff and other defendants. He get executed a
release deed dated 06/08//2010. Further, as argued by the plaintiff that defendant no.4
gave money to all other heirs and got released their share in suit properties except the
plaintiff, defendant no.6 and mother of defendant no.7 to 10 which can be prima facie
seen. This makes the plaintiffs case prima facie possible that her rights were not
determined as there was no partition of the said suit properties and without giving
daughters’ their share, other defendants colluded against the plaintiff.

9. Defendant No.13 challenged the plaintiff's case on the ground that the plaintiff has
not challenged any revenue record and property was of defendant no.4 only therefore,
she does not have any share or right over the suit properties. I would like to point out
here that, prima facie looking at the record, which apparently shows on face of it that
earlier suit properties were in the name of Arjun Nago Patil after that properties were
transferred in the name Namdev Arjun Patil being elder son of plaintiff's father
deceased Chahu Arjun Patil who was also having share in the ancestral suit
properties. Further, prima facie it can be seen that properties were in the name of
Arjun Nago Patil which was transferred in the name of defendant no.4 in the capacity
of Karta of the family and dues paid by him with respect of suit properties were also
in the capacity of Karta of family being elder most person in the family. After his
death, plaintiff and defendant no.6 and mother of defendant no.7 to 10 being his
daughters and other sons of are his legal heirs. Chahu Arjun Patil died intestate.
Therefore, it is clear that the plaintiff being daughter has share in the suit property in
view of Section 8 of the Hindu Succession Act, 1956. The question whether the
defendant No.13 is bona fide purchaser or not will be decided at the time of final
hearing. Considering the fact that, plaintiff has share in the suit property it is
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RCS No.215/2017
Smt. Bhagibai B. Bhoir & Ors.
Vs. Ms. Spartan Development Corp. & Ors.
Exh.05
necessary to maintain status-quo in respect of suit property till disposal of the suit for
avoiding further multiplicity of litigations and complications.

10. In view of above discussion, I come to the conclusion that, the plaintiff prima-facie
proved her share in the suit property and balance of convenience also lies in her
favour. I therefore hold that plaintiff has proved prima-facie case and therefore she is
entitled for temporary injunction as sought for. If temporary injunction is not granted,
plaintiff would suffer irreparable loss as it was not disputed that she is also legal heir
of Chahu Arjun Patil. In my opinion, prima facie, the plaintiff has case to proceed
with. Furthermore, it has to be determined on merit after taking proper evidence that
whether properties were transferred in the name of defendant no.4 as a Karta of the
family of in his personal capacity. Hence, I answer point Nos. 1 to 4 in the
affirmative and in answer to point no.5, I pass the following order:

ORDER

1. Application is allowed partly.

2. Defendants are temporarily restrained from alienating or creating any third

party interest in the suit property and not to construct upon suit properties
till disposal of the suit.

3. Costs shall follow the decision of the suit.

Date:-23/04/2021. (V.V. Raojadeja)

Place: Thane 7th Civil Judge Junior Division

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RCS No.215/2017
Smt. Bhagibai B. Bhoir & Ors.
Vs. Ms. Spartan Development Corp. & Ors.
Exh.05
Defendant no.1 had agreed to purchase suit properties from plaintiff no.1, 2, 8,
defendant no.4 and 10 and Deceased Pandurang Keshav Patil, Padmibai P. Patil, Shri
Vasudeo P. Patil, Shri Vithoba P. Patil were Vendors for total consideration of
Rs.5,00,000/- (rupees Five Lacs only). In part performance of Agreement for sale dated 17 th
December 1986, the suit properties in exclusive possession of Defendant no.1. As
Defendant no.1 paid the entire consideration of the said property to the vendors. Vendors
had executed an irrevocable Power of Attorney, dated 12th December, 1986 and same was
notarized in the favour of defendant no.1 conferring upon them several powers inter-alia
power to develop the said property for valuable consideration coupled with interest. In
1987, these defendants have also constructed a compound wall around the said property, it
was well in knowledge of vendors, though they never raised objection at that time. Based
upon irrevocable Power of Attorney, defendant no.1 executed a registered Deed of
Conveyance dated 25th April, 2014 in favour of one of its partner namely, Mohan Madhukar
Patil.

Defendant no.4 to 9 filed earlier civil suit for declaration and injunction
wherein present plaintiffs were made defendants who chose not to contest. Present
defendant no.1 to 3 settled the dispute pertaining to the said property and that too without
prejudice to the right, title and interest of these defendants in the suit property and without
admitting the right of plaintiffs and other defendants in the suit property of that suit RCS
No.74/2015. Earlier suit was compromised and accordingly decreed in favour of defendant
no.1 to 3 and plaintiffs and defendant no.4 to 9 have knowledge about that consent decree
and till date none of them has challenged that Consent decree. Therefore, considering
aforesaid grounds present application has to be rejected.