Case Note & Summary
The case arises from a property dispute between the petitioners (defendants) and the respondent (plaintiff) over Survey No. 88. The respondent, Manjubai Dopaji Naitam, filed Regular Civil Suit No. 23 of 2014 seeking a permanent injunction restraining the defendants from interfering with her possession of the suit property. She claimed ownership and possession based on a Will dated 13.04.2014 executed by her husband, Dopaji. The petitioners, who are the children of Dopaji from his first wife, contended that the property was ancestral and that the 7/12 extract showed mutation in the names of Dopaji and his two sisters, indicating it was not self-acquired. The trial court rejected the respondent's application for temporary injunction on 20.11.2014. The respondent appealed to the lower appellate court in Misc. Civil Appeal No. 72 of 2014, which reversed the trial court's decision and granted a temporary injunction in her favour. The petitioners challenged this order by way of a writ petition before the Bombay High Court. The High Court examined the question of whether the suit property was ancestral or self-acquired, noting that this issue required determination on merits. The lower appellate court had prima facie found that the respondent was in possession of the property covered by the Will and that there was no evidence of the petitioners' possession. The High Court held that the view taken by the lower appellate court was a possible view and did not warrant interference. However, it partly allowed the writ petition by restricting the temporary injunction to the 41R of land covered by the Will dated 13.04.2014, rejecting the claim for injunction over the remaining portion of the property.
Headnote
A) Civil Procedure - Temporary Injunction - Prima Facie Possession - Order XXXIX Rules 1 and 2 CPC - The lower appellate court reversed the trial court's rejection of temporary injunction, finding prima facie that the plaintiff was in possession of the suit property based on a Will executed by Dopaji. The High Court held that the view taken by the lower appellate court was a possible view and upheld the injunction but restricted it to the 41R land covered by the Will. (Paras 2-4) B) Property Law - Will - Ancestral vs Self-Acquired Property - The dispute involved whether Survey No. 88 was ancestral property of Dopaji or his self-acquired property. The plaintiff claimed ownership based on a Will, while the defendants contended that the property was mutated in the name of Dopaji and his two sisters. The court left the issue to be decided on merits. (Para 3)
Issue of Consideration
Whether the lower appellate court's order granting temporary injunction in favour of the plaintiff should be upheld or modified, and whether the injunction should be restricted to the property covered by the Will.
Final Decision
The writ petition is partly allowed. The order of injunction shall operate only to the extent of 41R of land which is covered by the Will dated 13.04.2014. The claim for injunction in respect of the remaining portion of the property is rejected.
Law Points
- Temporary injunction
- prima facie possession
- Will
- ancestral property
- self-acquired property
- possible view of lower appellate court
