Case Note & Summary
The petitioner, Balwant Krishna Thorat, filed a Regular Civil Suit No.208 of 2020 seeking partition of his share in the suit property and an injunction restraining the first respondent, Shankar Nivrutti Thorat, from entering the property or taking forcible possession. The suit property originally belonged to Baburaoji Thorat, after whose death it devolved upon his sons (defendant nos.4 and 5) and their late brother Vishnu. Defendant nos.2 and 3 are Vishnu's sons. The petitioner is a distant relative of defendant nos.2 to 5, while defendant no.1 is unrelated. The petitioner purchased the shares of defendant nos.2, 4, and 5 through a sale deed dated 10.01.2018 and consent deeds dated 25.12.2019 and 26.12.2019, respectively. Mutation entry no.4954 was effected. The trial court granted a temporary injunction in favor of the petitioner, restraining defendant no.1 from entering the suit property. Defendant no.1 appealed, and the District Judge-1, Karad, Satara, in Miscellaneous Civil Appeal No.30 of 2021, reversed the trial court's order, holding that the consent deeds were not valid conveyances and that the petitioner was not in possession. The petitioner challenged this order under Article 227 of the Constitution. The High Court analyzed the facts and found that the consent deeds were valid transfers and that the petitioner was in possession through his vendors. The court held that the appellate court had erred in reversing the trial court's discretionary order without valid reasons and that Section 41(h) of the Specific Relief Act, 1963 did not bar the suit. The High Court allowed the writ petition, set aside the appellate order, and restored the trial court's injunction.
Headnote
A) Civil Procedure - Temporary Injunction - Appellate Court's Power - The appellate court cannot lightly interfere with the trial court's discretionary order granting injunction unless the trial court's exercise of discretion is perverse or arbitrary. The appellate court must record reasons for reversing the trial court's order. (Paras 10-12) B) Property Law - Consent Deed - Validity - A consent deed is a valid mode of transfer of property and can be relied upon by the plaintiff to claim title and possession. The plaintiff who has purchased the share of co-sharers through consent deeds is entitled to seek partition and injunction against a trespasser. (Paras 6-8) C) Specific Relief Act, 1963 - Section 41(h) - Bar of Injunction - Section 41(h) of the Specific Relief Act, 1963 does not bar a suit for partition and injunction when the plaintiff is in possession through his vendors and the defendant is a trespasser. The remedy of partition is available to a co-sharer. (Para 9)
Issue of Consideration
Whether the appellate court was justified in reversing the trial court's order granting temporary injunction in a partition suit, and whether a consent deed is a valid conveyance entitling the plaintiff to maintain a suit for partition and seek injunction.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 17.09.2021 passed by the District Judge-1, Karad, Satara in Miscellaneous Civil Appeal No.30 of 2021, and restored the trial court's order granting temporary injunction in favor of the petitioner.
Law Points
- Consent deed is a valid conveyance
- Plaintiff in possession through vendors is entitled to injunction against trespasser
- Appellate court cannot reverse trial court's discretionary order without valid reasons
- Section 41(h) of Specific Relief Act
- 1963 does not bar suit for partition and injunction
- Order 39 Rules 1 and 2 CPC
