Precaution while deciding injunction application relating to joint family property

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR

WRIT PETITION NO. 2026 OF 2016

Sukhdeo Pandurang Bawankule,
Vs
Vasant Eknath Bawankule,

CORAM: R. K. DESHPANDE, J.
DATE    :   7 th DECEMBER, 2016 .
Citation:2017(1) ALLMR555

1] Rule made returnable forthwith. Heard the matter finally by consent of learned counsels appearing for the parties.

2] In   a   suit   simplicitor   for   grant   of   injunction restraining the defendant from interfering with the possession of the plaintiffs over the suit property,  the trial Court rejected the   application   for   grant   of   injunction,   whereas   the   lower appellate Court has allowed it.  Hence, the original defendant is before this Court.

3] It   seems   that   the   property   is   a   joint   family property.  There is no finding recorded by the Courts below on the question of possession.  The appellate Court has also failed to record the finding as to whether the plaintiffs are in possession or the defendant.  The partition deed, if any, has not been considered containing recital about the possession of the property.  In view of this, the order impugned suffers from non application of mind to the relevant aspect of the matter.   The same cannot, therefore, be sustained and the matter will have to be sent back to the lower appellate Court to decide it afresh.

4] In   the   result,   the   writ   petition   is   allowed.   The judgment and order dated 05.10.2015 passed by the lower appellate Court in Misc. Civil Appeal No. 29 of 2014 is hereby quashed and set aside and the matter is remanded back to the Principal District Judge, Amravati, for recording specific finding on the aspect of physical possession. The parties to appear before the lower appellate Court on 19.12.2016.

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