1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.639 OF 2009 IN SPECIAL CIVIL SUIT NO.17 OF 2008 Smt.Jayalaxmi Ishwardas Vora ..Appellant V/s. Mrs.Prathibha Ramchandra & Ors. ..Respondents ---- Mr.B.R.Zaveri for the appellant. Mr.V. B.Naik i/by S.D.Patil for respondent nos.1 to 6. Smt.S.V. Sonavane AGP for respondent nos.8 & 9. ---- W I T H APPEAL FROM ORDER NO.741 OF 2009 IN SPECIAL CIVIL SUIT NO.17 OF 2008 Damodar Atmaram Balam ..Appellant V/s. Pratibha Ramchandra Malusare & ors ..Respondents ---- Mr.V. D. Thorat i/by RMG Law & Associates for the appellant. Smt.S.V.Sonavane AGP for respondent nos.8 & 9. Mr.Bharat R.Zaveri for respondent no.7. Mr.V.B.Naik i/by S.D.Patil for respondent nos.1 to 6. 2 Coram : R.S.MOHITE,J Date : 29th July, 2009. PC 1 Both these appeals impugn the same order passed below Exhibit-5 in Special Civil Suit No.17 of 2008. By the impugned order, defendant no.4-CIDCO, their officers, employees, servants, agents and any person claiming through or under them have been temporarily restrained from conveying the plot of land under 12.5% Gaothan Expansion Scheme in favour of defendant no.1 or anyone claiming through or under defendant no.1 and further injuncted defendant no.1 from signing any tripartite agreement to that effect in favour of any other person. The present plaintiffs are the brothers and sisters of defendant no.5 Damodar Atmaram Balam in the suit. It is the claim of the plaintiffs that their father Atmaram was a protected tenant, in possession of the land in lieu of which the plot of land in respect of which the injunction has been sought is allocable, since prior to the tillers day. It is the plaintiffs’ case that Atmaram died on 20.8.1956 leaving behind the plaintiffs and present defendant no.5 as his heirs. The father-in-law of present defendant no.1 by name Laxmidas had purchased the land, in respect of which according to the plaintiffs, their father Atmaram was the protected tenant. This land was claimed by defendant no.1 Jayalaxmi through her deceased father-in-law and deceased husband. The facts indicate that defendant no.5 Damodar Balam was the eldest son and claimed to be the karta of the family. Since the compensation in the matter had been paid only to the landlords, defendant no.5 filed a suit being Special Civil Suit No.167 of 2001 in the Court of Civil Judge, Senior Division, Thane, and ultimately this suit was disposed off in terms of the consent terms entered into between the present defendant no.5 and the present defendant 3 no.1. Under clause-(d) of the consent terms the present defendant no.5 admitted that the present defendant no.1 alone was entitled to get monitory compensation as well as benefits under 12.5% Gaothan Expansion Scheme in respect of the same suit property. Under clause-(J) the present defendant no.5 declared and confirmed that in the event that any heirs of the late Atmaram or any of his relatives made a claim at any future date, the same would be dealt with and settled, if required, by the present defendant no.5 alone and no liability in that regard would be foisted on present defendant no.1. 2 Subsequently, the present suit has been filed by the plaintiffs, being the other heirs of Atmaram, and it is their case that they have been deprived of their rights of compensation, as well as their rights to obtain the benefit of the alternate land under 12.5% scheme. They have therefore, taken out the present Notice of Motion for injunction against CIDCO for conveying the land to defendant no.1 and for other injunction which have been referred to here-in-above and granted by the Court. 3 After hearing both sides, in my view, Appeal from Order No.639 of 2009 filed by the owners and defendant no.1 to the suit, requires to be dismissed on a prima facie view of the merits. On perusing the impugned order it is clear that the injunction has been granted because there is prima facie material to show that the name of Atmaram appeared in the record of rights since the year 1950. According to the plaintiffs, Atmaram died in the year 1956. The name was not continued thereafter but sometime in about 1974 the name of present defendant no.5 came to be mutated on the record since he was the eldest son. The record indicates that defendant no.5 had filed the suit claiming same reliefs as has been claimed by the plaintiffs. In my view, therefore, prima facie view taken by the trial Court 4 should not be interfered with at this stage since the rights of parties will have to be decided on the basis of evidence adduced in the suit. 4 In so far as Appeal from Order No.741 of 2009 is concerned, there is an additional reason why the appeal should not be entertained, being, that the present defendant no.5 who has filed the appeal has disposed off his rights. Though he has given an indemnity, that indemnity can only be enforced by defendant no.1 once the claim has fructified. That stage has not yet been reached. In the circumstances, both these appeals are rejected. It is made clear that the view expressed by me is a prima facie view and will not be relied upon by the trial Court at the stage of hearing of the suit. (R.S.MOHITE,J)