Bombay High Court

DR. SACHINKUMAR SUKUMAR SUGANAVARversusSHRI. RAJGONDA PARISA SUGANAVAR AND OTHERS

Disposal: Disposed Off
Bench: SANDESH D PATIL

Holding

The appellate court held that the second suit is not maintainable as the same cause of action is pending in the earlier partition suit, and therefore the appeal is dismissed.

Summary

The appellant Dr. Sachinkumar Suganavar appealed against two orders of the 5th Joint Civil Judge, Sangli, which had rejected his applications for injunctions restraining defendants from mortgaging a family property. The appellant argued that the partition deed, though unregistered, was effective and that the defendants had no right to encumber the joint family property. The court observed that the same property and cause of action were already pending in an earlier partition suit (Special Civil Suit No.71 of 2018), and that the appellant could have raised the mortgage issue therein. Consequently, the trial court’s finding that the second suit was not maintainable was upheld, and the court declined to interfere on limitation or other grounds. The appeal was dismissed, the interim relief vacated, and the interim application disposed.

Issues considered

Whether a second suit seeking declaration and injunction regarding mortgaging of a property is maintainable when an earlier partition suit concerning the same property is pending.
Whether the trial court erred in rejecting the appellant's applications for interim injunction and relief.
Whether the limitation period bars the appellant's claim.

Subjects

partition suit
mortgage
injunction
limitation
res judicata
civil procedure
interim relief

Judgment

912-AO-328-2024 (C).doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIRCUIT BENCH AT KOLHAPUR
CIVIL APPELLATE JURISDICTION

APPEAL FROM ORDER NO. 328 OF 2024
WITH
Digitally
signed by
INTERIM APPLICATION NO. 7891 OF 2024
SHAILAJA
SHAILAJA
SHRIKANT
SHRIKANT
HALKUDE
IN
HALKUDE Date:
APPEAL FROM ORDER NO. 328 OF 2024
2026.07.15
18:26:14
+0530

Dr. Sachinkumar Sukumar Suganavar ] Appellant
versus
Shri. Rajgonda Parisa Suganavar and others ] Respondents
…..
Mr. Ashutosh Kulkarni (through V.C.) a/w Mr. Avesh A. Ghadge a/w Mr.
Aditya A. Ghadage i/b Mr. Akshay A. Kulkarni, for the Appellant.

Ms. Ankita D. Mali i/b Mr. Manoj Patil, for Respondent Nos.22 & 27.

Mr. Omkar Koratkar h/f Mr. Balwant Salunkhe, for Respondent Nos.8
and 9.

Mr. Kuldeep U. Nikam a/w Mr. Pratik D. Patil, for Respondent Nos.1 to
7, 10 to 15, 30 and 31.

Ms. Rati Sinhasane i/b Mr. Umesh Mankapure, for Respondent Nos. 28
and 29.

Mr. P.P. Deokar, A.G.P, for Respondent Nos.17, 18, 16, 19 and 20 – State.

Ms. Rati Sinhasane, for Respondent Nos. 28 and 29.

Mr. Aditya S. Raktade a/w Mr. Sanket V. Patil, for Respondent
Nos.21,23,25 and 28.
…..

CORAM: SANDESH D. PATIL, J.
DATED: 10th JULY 2026.

Shailaja
1
912-AO-328-2024 (C).doc

P. C. :

1. Heard learned counsel appearing for the parties.

2. By the present Appeal, the appellant is challenging the Judgment

and Order dated 19th January, 2024 passed by the learned 5 th Joint Civil

Judge, Senior Division, Sangli in Special Civil Suit No.540 of 2023 and

the Judgment and Order dated 22nd February, 2024 passed by the

learned 5th Joint Civil Judge, Senior Division, Sangli thereby rejecting

the application below Exhibit 5. Although both the applications are

titled as Exhibit 5, the first order dated 19th January, 2024 was rejected

in so far as defendant Nos.21, 25, 28 and 29 are concerned. The next

order dated 22nd February, 2024 was passed against all the defendants

except Defendant Nos.21,25,28 and 29. Defendant Nos.21, 25, 28 and

29 are the financial institutions and its officers. A Civil Suit was filed by

the plaintiff earlier in point of time viz. Special Civil Suit No.71 of 2018

for partition. The said suit was pending. During pendency of the said

suit, a fresh suit was filed by the plaintiff bearing Special Civil Suit

No.540 of 2023. In the said suit, the plaintiff had sought the prayers,

Shailaja
2
912-AO-328-2024 (C).doc

inter alia, declaration that the act of defendant Nos.1, 2,3,5,6,8,10 and

13 to 15 of mortgaging the property with the financial institutions is

bad in law and that the said mortgage and act of taking the loans from

the financial institutions is not binding upon the plaintiff. In the said

suit, an application below Exhibit 5 was filed wherein two reliefs were

sought against the defendants therein viz; (i) to restrain defendant

Nos.1 to 15 from taking loan and creating encumbrances upon the suit

property; (ii) restraining the banks from giving loan and restraining the

recovery officer from taking illegal possession of the suit property. The

learned trial court by two different orders passed below Exhibit 5 had

rejected the applications.

3. Mr. Kulkarni, learned counsel appearing for the appellant

submitted that the partition deed is an unregistered deed, however,

everyone has acted as per the partition deed. He submits that this MOU

need not be registered. He submitted that the property was properly

distributed and that there was no reason for the defendants to

undermine the document of partition viz. partition deed. He submitted

that the impugned judgment and order, therefore, is bad in law and

Shailaja
3
912-AO-328-2024 (C).doc

deserves to be quashed and set aside. He submitted that the properties

being joint properties of all the family members, the defendants do not

have any right of mortgaging and encumbrancing the property. He

submitted that if that is done, the entire property will be wasted. He

submitted that defendant Nos.1 to 15 by joining hands with defendant

Nos.22 to 30 borrowed crores of rupees on the property. Therefore, the

property in question was wasted. He submitted that the impugned

Judgment and Order is bad in law and, therefore, deserves to be

quashed and set aside.

4. It is admitted case that Special Civil Suit No.71 of 2018 is filed by

the plaintiff and that the said suit is pending adjudication. The said suit

is for partition, declaration and injunction. If the prayers of the present

suit i.e Special Civil Suit No.540 of 2023 are perused then it is clear that

the prayer is for declaration that the defendants have no right to

mortgage the property with the defendant-banks.

5. I have considered the prayers of both the suits minutely. As on

today, Special Civil Suit No.71 of 2018 which is prior in point of time is

Shailaja
4
912-AO-328-2024 (C).doc

pending for partition, declaration and for further reliefs. If this was so

then the plaintiff could have sought the same relief in the said suit

bearing No.71 of 2018 and that filing of a substantive suit for the

purpose of getting the declarations as stated above is not maintainable.

Admittedly, property which is subject matter of Special Civil Suit No.

540 of 2023 is the same property which is involved in partition suit

bearing No.71 of 2018. Hence, by no stretch of imagination, the second

suit for the same cause of action would be maintainable. The plaintiff

definitely had a remedy to espouse his cause in that suit.

6. Whether or not the partition can be granted, whether or not the

plaintiff has any right in the suit property is sub judice and is pending

for consideration in Special Civil Suit No.71 of 2018. Filing of the suit

and raising same contention in this suit is therefore not proper. The

finding of the learned Trial Court on this issue is correct and does not

require interference at the hands of this court. Coupled with the facts,

learned trial court has correctly held that the plaintiff had knowledge

in the year 2018 itself about the loan borrowed by defendant Nos.10 to

15 but the suit is filed after five years. Although the court has held that

Shailaja
5
912-AO-328-2024 (C).doc

this was, prima facie, beyond limitation, I do not choose to express any

view on the issue of limitation. Suffice it to say that there was

enormous delay and latches for the purpose of seeking these reliefs.

This is yet another ground on which I do not propose to interfere in the

judgment and order passed by the learned trial Court. Hence, the

following order;

:ORDER:

(a) The Appeal from Order is rejected.

(b) Ad-interim relief granted by this court is vacated.

Application also stands disposed of.

7. At this stage, learned counsel for the appellant submits that

appellant desires to challenge this order before the Apex Court and

hence observations made by this court on 26 th November, 2024 which

read as under, be continued.

“By way of ad-interim relief till the next date, if the
Respondent Nos.1 to 15 create any 3 rd party interest or
encumbrances over the suit property or part thereof, it will
not bind the share of the applicant”.

Shailaja
6
912-AO-328-2024 (C).doc

8. Since I have rejected the interim order for the reasons mentioned

in the detail above, I do not find any reason to continue the ad-interim

relief.

[SANDESH D. PATIL, J.]

Shailaja
7

Continue reading with your account

Checking your session…