Mr. Tukaram Genuji Satav (Since Deceased) And ORS. v. Sau. Mangal Gopichand Raut And ORS.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1291 OF 2019 IN FIRST APPEAL NO.438 OF 2019 Tukaram Genuji Satav and Ors.

...

Applicants versus Mangal Gopichand Raut and Ors.

...

Respondents Mr. Uday P. Warunjikar, for Appellants.

Mr. T.D.Deshmukh, for Respondent No.1.

Ms. Prachi Tatake h/f for Mr. Vaibhav Sugdare, for Respondent No.2. CORAM: AKIL KURESHI & S.J. KATHAWALLA, JJ.

DATE: 7 th JUNE, 2019 P.C.:

1.

Rule.

2.

The learned Advocates for Respondent Nos.1 and 2 waive service of Rule. 3.

Respondent Nos.1 and 2 being the original Plaintiffs, it is not necessary to hear rest of the Respondents in order to deal with the Civil Application filed by the Applicants-original Defendant Nos.1 to 5. The Plaintiffs are the lady members of the family. Defendant Nos.1 to 5 are the other members of the family. The Plaintiffs had filed a Suit primarily challenging the family partition, which took place in the year 1992. The Trial Court allowed the Suit declaring that the deed of partition was not binding on the Plaintiffs. The learned Trial Judge has also issued consequential directions.

4.

Having heard Counsel for the parties and having perused the documents on record, it prima facie emerges that the partition which took place in the year 1992 was challenged by filing Suit in the year 2011. In the meantime, the original Defendant Nos.1 to 5 acting on such partition had already created third party rights in relation to lands bearing Survey Nos.66 and 67 of Village Hadapsar, Dist. Pune, by granting development rights to the builder. Acting on such agreement, the builder had also initiated development of the properties, obtained necessary permissions for construction from the local authorities and going by the written statements, had constructed as many as 300-400 residential units which were occupied by the respective purchasers. Under the circumstances, in so far as lands bearing Survey Nos.

66 and 67 of Village Hadapsar, Dist. Pune are concerned, we are inclined to grant protection to the present Appellants. We also notice that the family has agricultural lands which are stated to be in possession of the Appellants-Applicants. Under the circumstances, the execution and implementation of the impugned Judgment and decree are stayed subject to the following conditions : (i) With respect to agricultural lands, the Appellants-Applicants shall maintain status prevailing as on 13 th December, 2018 i.e. the date of the Judgment of the Trial Court, regarding possession and title of the properties in question. (ii)All third party rights created during the pendency of the Suit and which may be created hereafter in relation to the lands bearing Survey Nos.

Village Hadapsar, Dist. Pune, and the construction carried out thereon, shall be subject to the outcome of the present First Appeal. (iii)The Respondent No.3 herein shall maintain full accounts of the residential units, which are constructed on the lands bearing Survey Nos.66 and 67 of Village Hadapsar, Dist. Pune, which are sold hereinafter and shall file by yearly such accounts before this Court.

5. The above Civil Application is accordingly disposed of. ( S.J.KATHAWALLA, J. ) ( AKIL KURESHI, J. )