1 IN THE COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 556 OF 2007 IN FIRST APPEAL NO.78 OF 2007 Dyanoba Sahadu Kale .. Appellant V/s. Nathu Bhiva Kale & Ors. ..Respondents Mr.A.B.Tajane for the Appellant/Applicant. Mr. S.K. Shinde i/b. Mr. Sagar Kasar for Respondent Nos. 1 and 2. Ms.Pallavi Dabholkar for Respondent No.4. Mr.C.R.Tripathi for Respondent Nos. 5 to 8. CORAM : R.M.SAVANT, J. DATED : AUGUST 22ND, 2008. P.C. By the above Civil Application, the Applicant/Appellants prays for the following reliefs : 2 a) Pending the hearing and final disposal of the present First Appeal, the Respondents herein be restrained by an order of injunction from creating and/or alienating, selling, transferring the suit property or creating any third party rights or interest in respect of the suit property; b) Pending the hearing and final disposal of the present Civil Application, interim and/or ad interim reliefs in terms of prayer clause “a” be granted; c) Any other just and equitable reliefs be granted; 2. The Applicant is the original Appellant who has filed the above First Appeal against the Judgment and decree dated 22nd August, 2006 passed by the learned Joint Civil Judge, Senior Division by which the suit filed by the Appellant/Applicant being Special Civil Suit No.93 of 2002 came to be dismissed. The said suit was filed for partition and possession of the Appellant/Applicant share in the suit property being lands mentioned in paragraph 2 of the impugned Judgment. It appears 3 that in the said suit, the Application for interim injunction came to be filed against the original Defendant Nos. 1 to 3 restraining the said Defendants from alienating the suit property. The Trial Court passed the ad-interim order which was continued upto 3rd July, 1991. It is the case of the Appellant/Applicant that the said order was thereafter continued till the disposal of the said suit as it was ordered that the said application Exhibit 5 for interim injunction was to be heard alongwith the said suit. However, no copy of the order whereby the said injunction granted on 21st June, 1991 was continued has been produced. It has merely been stated in paragraph 4 of the Civil Application “that it seems from the record that the same order dated 21st June 1991 was continued till disposal of the suit in view of the order dated 30th August, 1991.” 2. The above First Appeal was admitted and in 4 the above Civil Application an Ad-interim was granted /on 23rd January, 2007 which was to operate till 30th April, 2007. Thereafter, ad-interim order was continued from time to time and lastly continued upto 11th June, 2007 by order dated 16th April, 2007. The learned counsel for the Appellant/Applicant has fairly admitted that thereafter the said ad-interim order has not been continued as the above Civil Application was not listed for hearing. 3. It is contended on behalf of the Applicant that in view of the admission of the Appeal and in view of the findings of the Trial Court that the Appellant/Applicant is entitled to 1/4th share in the suit properties, the relief sought by way of the above Civil Application should be granted. It is further contended that the suit filed by the Applicant has been dismissed only on the point of limitation. 5 4. Per contra, it is contended on behalf of the Respondent Nos. 1, 2 and 5 to 8 by their learned counsel that the Trial Court has recorded a finding that Gat No.2148 and Gat No.920 out of the suit properties are self acquired properties of Maruti Kale and the Plaintiff i.e. the Appellant herein cannot have any rights over the said properties. It is further contended that Gat No.2148 has been sold which has also been recorded by the Trial Court and therefore at the highest interim relief by way of prayer clause “a” can be granted in respect of suit properties excluding the said Gat No.920 and 2148. 5. Considering the rival contentions and considering the fact that the interim injunction in the Trial Court was restricted only against 6 Defendant Nos. 1 to 3. As also the fact that the interim injunction was not continued beyond 3rd July, 1991. As also considering the fact that the properties being Gat No.2148 and 920 having been held to be self acquired properties of Maruti and Mahadu, the interim relief in terms of prayer clause “a” in the Civil Application in my view, has to be restricted to the suit properties excluding Gat No.2148 and Gat No.920. 6. The Civil Application is therefore allowed in terms of prayer clause “a” excluding properties being Gat No.2148 and Gat No.920. Needless to say that any further rights created in respect of the said properties being Gat No.2148 and Gat No.920 would be subject to the result of the First Appeal. [R.M.SAVANT, J.] 7