1 Civil Application No.3124/2011 in First Appeal No.329/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CIVIL APPLICATION NO.3124 OF 2011 IN FIRST APPEAL NO.329 OF 2011 Yeshwanta s/o Ramaji Bongane & ors. ... APPLICANTS VERSUS Shrimant s/o Bhaurao Bongane & ors. ... RESPONDENTS ..... Shri Dhengale, Advocate holding for Shri A.A. More, Advocate for applicants Smt. P.V. Langhe, Advocate for respondents ..... CORAM : R.M. BORDE, J. DATED : 8th July, 2011. PER COURT : 1. This is an application seeking stay to the execution of the judgment and decree passed by the trial Court on 24.12.2010. The applicants/ appellants are original defendants and a decree of perpetual injunction has been clamped against the defendants in respect of the suit property. It is informed that, the trial Court has clamped an order of injunction restraining the defendants from interfering in the possession of the plaintiffs and from ousting the member of family from joint possession of the suit property. The sale deed executed by the defendant No.1 in favour of defendants No.2 and 3 is held to be 2 Civil Application No.3124/2011 in First Appeal No.329/2011 not binding on the rights and entitlement of the plaintiff. The defendants No.2 and 3 are also restrained from creating third party interest in respect of the suit property. It is informed that, during the pendency of the suit, an application for temporary injunction was moved and the same was not contested and was allowed. The defendants contend that the plaintiffs and defendants belong to one and the same family and have entitlement in respect of the ancestral property. The case of the plaintiffs is that there was a deed of partition executed on 2.12.1989 and the parties are put in possession in pursuance to the execution of the partition deed. However, the entries in revenue record do not show that the partition deed is acted upon. Apart from this, there is no material placed on record of this Court to show that the partition deed is acted upon. 2. Considering the fact that the parties to the dispute belong to the same family i.e. plaintiffs No.1 to 3 and the defendant No.4 are the real brothers, defendant No.1 is their uncle and defendant No.2 is wife of defendant No.4, so also the defendant No.3 is their son, I am of the view that, the order of injunction issued by the trial Court shall be restricted only in respect of ouster of a member of family from joint possession, the decree passed by the trial Court, so far as it relates to directions contained in para Nos.1 and 3 is concerned, the same 3 Civil Application No.3124/2011 in First Appeal No.329/2011 need not be stayed and the prayer made by the defendants in respect of grant of stay of the decree in respect of the directions contained in para Nos.1 and 3 of the operative portion of judgment of trial Court, stands rejected. So far as the directions contained in para No.2 is concerned, the decree for injunction granted by the trial Court shall operate only so far as the ouster of the plaintiffs from joint possession over the property is concerned. The decree of injunction granted by the trial Court shall be restricted to grant of restraint order against the defendants from ousting the plaintiffs from joint possession of the suit property. Civil Application is accordingly disposed of. ( R.M. BORDE, J. ) fmp/ca3124.11