2_SA_515_12.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 515 OF 2012 Prakash Gangaram Dhamdhere and another … Appellants vs. Dnyaneshwar Ganpat Garud and another … Respondents Mr. Drupad S. Patil a/w. Mr. Namitkumar S. Pansare for appellants. Mr. Sumit Khaire for respondents. CORAM : MANISH PITALE, J DATE : 04th DECEMBER, 2025 P.C. : . Heard the learned counsel for the parties. This appeal was admitted on the following substantial question of law: “Whether the appellate Court was right in setting aside the decision of the Trial Court, without recording any finding as to the entitlement of the plaintiffs’ share in the suit property?” 2. The appellants before this Court are the original plaintiffs, who had filed a suit for declaration and permanent injunction. The appellants sought a declaration to the effect that they were owners of the suit properties, being agricultural lands located at Talegaon Dhamdhere, Taluka Shirur, District Pune or in the alternative, a declaration that they are the owners of 3/4th share in the suit properties. The appellants also prayed for permanent injunction in the context of the suit properties. 3. The parties are related to each other and a perusal of the genealogy shows relationship between the parties, which is as follows: 1/8 2_SA_515_12.doc 4. Manaji was the original owner of the suit land bearing Survey Nos.429/2, 429/4, 429/6, 431/3 and 906. He died leaving behind two sons Rangnath and Krishnaji. He had transferred the suit lands in favour of his elder son Rangnath. Although Rangnath had three wives, he died issue-less. Krishnaji had two sons: Genu and Nana. It was claimed by the appellants that Rangnath bequeathed his entire share in the property in favour of Genu (one of the two sons of Krishnaji. The appellants claim through Genu, while the respondent No.1 (original defendant No.1) claims through Nana (the other son of Krishnaji). It appears that although all the suit properties were recorded in the revenue entries in the name of Rangnath, such entries were subsequently made in the name of Genu. Genu died on 15.02.1955, leaving behind five sons and the appellants (original plaintiffs) are sons of Gangaram, one of the five sons of Genu. 5. On the other hand, Nana expired in the year 1956, leaving behind his widow Sakhubai and one daughter Draupadabai. On 26.11.1956, a mutation entry was made, whereby ½ share in the suit properties, was recorded in the names of five sons of Genu and remaining ½ share was recorded in the name of widow of Nana i.e. Sakhubai. Draupadabai married Ganpat and started residing at her matrimonial house at Belsar, Taluka Purandar, District Pune. In the year 1961, Sakhubai executed a gift deed in favour of Draupadabai. 2/8 2_SA_515_12.doc 6. On 10.12.1986, Gangaram (one of the five sons of Genu) filed Regular Civil Suit No.163 of 1982 against Dnyaneshwar (respondent No.1 herein), seeking a declaration that the said respondent had no concern with the suit land, which was one of the lands concerning the present suit, described as Property A1 in the instant suit. An injunction was also prayed for. The suit was dismissed and it is an admitted position that the appeal filed against the said order, was dismissed for non-prosecution in the year 1995. 7. Draupadabai died leaving behind 4 sons and 2 daughters, one of whom is Dnyaneshwar i.e. respondent No.1 (original defendant No.1) in the present proceedings. 8. In this backdrop, on 24.12.1998, the appellants filed Regular Civil Suit No.228 of 1988 before the Court of Civil Judge Junior Division, Ghodnadi (hereinafter referred to as the Trial Court), against the respondents, seeking the aforesaid declaration of being owners of the entire suit property and in the alternative, seeking a declaration that they are the owners of 3/4th share in the suit properties, with consequential prayer for permanent injunction. Respondent No.1 (original defendant No.1) filed written statement, opposing the prayer made in the suit and claimed ½ share in the suit properties through Sakhubai, widow of Nana. 9. The parties led evidence in support of their respective stands. Eventually, on 15.04.2005, the Trial Court partly decreed the suit, by holding that the plaintiffs and their family members were owners to the extent of ½ share in the suit properties. Thereupon, the Trial Court granted permanent injunction, restraining respondent No.1 (original defendant No.1) and his family members from obstructing 3/8 2_SA_515_12.doc peaceful possession of appellants over the suit land, as described in the plaint in paragraph Nos.1-A and 1-B. Decree was directed to be drawn up accordingly. 10. Aggrieved by the said judgment and decree passed by the Trial Court, the respondent No.1 (original defendant No.1) filed Civil Appeal No.459 of 2005 before the District Court, Pune. The grounds of challenge indicate that respondent No.1, as the appellant before the District Court, challenged findings rendered by the Trial Court on issue Nos.2 to 7, which, inter alia, pertained to the right of the original plaintiffs of possession over the entire suit properties. 11. By the impugned judgment and order dated 17.02.2012, the District Court allowed the appeal and dismissed the entire suit filed by the appellants, thereby setting aside the judgment and decree passed by the Trial Court. Not only was the clause pertaining to permanent injunction granted against respondent No.1, set aside, but the declaration of the appellants being owners to the extent of ½ share of the suit properties, was also set aside. 12. The appellants filed the present second appeal, which was admitted on the above-quoted substantial question of law. 13. The learned counsel for the appellants referred to the pleadings, evidence and material on record, to contend that the District Court could not have dismissed the suit in its entirety. It was submitted that even if the claim of the appellants, to the extent that Rangnath had relinquished his share in the property in favour of Genu, was to be set aside, the finding of the Trial Court regarding ½ share of the appellants in the suit properties, could not have been 4/8 2_SA_515_12.doc disturbed. It was submitted that the pleadings, evidence and material on record was properly appreciated by the Trial Court, while partly decreeing the suit, which the District Court failed to appreciate, while allowing the appeal in its entirety and setting aside the decree, resulting in dismissal of the suit. 14. It was submitted that there was self-contradiction in the findings rendered by the District Court, inasmuch as it was concluded in initial portion of paragraph No.20 of the impugned judgment and order that the defendant No.1 and his brothers had proved that they had ½ share in the suit properties, thereby conceding that the appellants did have entitlement to the other ½ share in the suit properties and yet, towards the end of the said paragraph, findings were rendered against the appellants, inter alia, on the ground that they had never claimed partition of suit land between their predecessors Nana and Genu. In this context, it is submitted that the above-quoted substantial question of law ought to be answered in favour of the appellants and to that extent, the impugned judgment and order of the District Court, deserves to be set aside. 15. As regards the aspect of the Trial Court granting permanent injunction against the respondents, it was submitted that since both the Courts below had held the parties to be co-owners, as per settled law, permanent injunction granted by the Trial Court may not be sustainable. Yet, interference to the aforesaid limited extent in the impugned judgment and order of the District Court, is warranted. 16. On the other hand, the learned counsel appearing for respondent No.1 (original defendant No.1) submitted that even in the memo of appeal filed by the said respondent before the District 5/8 2_SA_515_12.doc Court, a frontal challenge was raised to the permanent injunction granted against the said respondent by the Trial Court, despite the fact that he was held to be a co-owner. The tenor of the appeal was more in the nature of attacking the said finding and permanent injunction granted by the Trial Court. Hence, it was submitted that this Court may pass appropriate orders with regard to the extent of share determined by the Trial Court and in any case, ½ share of the respondent No.1 in the suit properties, could not be denied. 17. This Court has considered the rival submissions, in order to decide the aforesaid question of law, in the light of the pleadings, evidence and material on record. A perusal of the genealogy depicted hereinabove, would show that while the appellants claimed through the branch of Genu, the respondents have claimed through the branch of Nana. It is undisputed that Rangnath had died issue-less and Genu and Nana were both sons of the only other son of Manaji i.e. Krishnaji. It is also a matter of record that there was no document produced by the appellant, to support their theory of Rangnath having relinquished his share to Genu, thereby augmenting his share that ultimately came to the appellants. 18. Once the theory of relinquishment of his share in favour of Genu, is found to be unsubstantiated, the two sides claiming through the two branches of Genu and Nana, ought to lead to the only possible conclusion of each side having ½ share in the suit properties. The Trial Court repulsed the claim of the appellants to the entire property or even 3/4th share in the property and eventually, led to the conclusion on the basis of material on record that the plaintiffs and their family members had ½ share in the suit properties, consequently leading to a conclusion that respondent No.1 had the other ½ share. 6/8 2_SA_515_12.doc 19. The District Court, in the impugned judgment and order, recorded in paragraph No.20 that ½ share in the suit properties, was indeed proved by the respondents and yet, proceeded to dismiss the entire suit on reasoning contained only in paragraph No.20. The said reasoning is found to be unsustainable, as the cogent findings rendered by the Trial Court, were upset without proper discussion. This Court also finds it inappropriate that the District Court dismissed the entire suit on the ground that they had never claimed partition of suit land between their predecessors Nana and Genu. Therefore, substantial question of law framed by this Court, deserves to be answered in favour of the appellants, as regards the extent of share of the appellants on the one hand and the respondent No.1 on the other. 20. As correctly pointed out by the learned counsel for respondent No.1, even in the appeal memo filed before the District Court, challenging the judgment and decree of the Trial Court, specific attack was focused on the Trial Court having granted permanent injunction against the respondents, despite the finding that they were co-owners in the suit properties. It is settled law that injunction cannot be issued against a co-owner. Yet, the District Court not only held in favour of respondents, as regards the aspect of grant of permanent injunction, but proceeded to dismiss the entire suit, thereby upsetting the findings and decree of the Trial Court, to the extent of holding that the appellants on the one hand and the respondents on the other, had ½ share each in the suit properties. 21. In view of the above, the appeal deserves to be partly allowed, as the substantial question of law deserves to be answered in favour of the appellants. 7/8 2_SA_515_12.doc 22. Accordingly, the impugned judgment and order of the District Court, is set aside, to the extent that the entire suit filed by the appellants, was dismissed. In view of the findings rendered hereinabove, the judgment and decree of the Trial Court, is modified and restored to the extent of clause 2 of the operative portion of the same, thereby declaring that the appellants and their family members on the one hand and respondent No.1 and his family members on the other, have ½ share each in the suit properties. 23. It is made clear that clause 3 of the operative portion of the judgment and order of the Trial Court, was correctly held to be unsustainable by the District Court in the impugned judgment and order. Hence, the prayer of the appellants (original plaintiffs) to the extent of grant of perpetual injunction, is held to be rejected. 24. The appeal is allowed in above terms and decree stands modified to that extent. 25. At this stage, it was brought to the notice of this Court that the appellants had filed cross-objection titled as counterclaim before the District Court, claiming ownership over the entirety of the suit properties. This appears to have gone unnoticed by the District Court, while passing the impugned judgment and order. But, in the light of the findings rendered hereinabove, no order needs to be passed on the said aspect of the matter. 26. There shall be no order as to costs. (MANISH PITALE, J.) 8/8 Priya Kambli PRIYA KAMBLI Digitally signed by PRIYA KAMBLI Date: 2025.12.05 17:14:44 +0530