1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD APPEAL FROM ORDER NO.97 OF 2008 Virkumar Virchand Shah ... APPELLANT VERSUS Virchand Nanchand Shah & ors. ... RESPONDENTS ..... Shri S.T. Shelke, Advocate for the appellant Shri N.V. Gaware, Advocate for R.No.1 to 3 and 5 to 7. ..... CORAM : S.P. DAVARE, J. DATED : 19th June, 2009. ORAL ORDER : 1. Mr. Gaware, learned counsel has filed the Vakalatnama for respondent Nos.1 to 3 and 5 to 7 in the Court, which is taken on record. 2. Perused. Heard learned counsel for the parties. The appellant, who is original plaintiff in Special Civil Suit No.16/2008, filed in the Court of Civil Judge, Senior Division, Shrigonda, for partition and separate possession in respect of suit properties bearing Grampanchayat Nos.850 and 880, situated 2 within the jurisdiction of Karjat, District Ahmednagar. The said properties were claimed to be the ancestral properties. 3. The appellant/ plaintiff preferred an application under Exh. 5 in the said suit under Order 39 Rule 1 of the Code of Civil Procedure for temporary injunction. The said application was decided by the learned Civil Judge, Senior Division, Shrigonda vide order passed on 17.9.2008 and thereby rejected the said application for temporary injunction preferred by the plaintiff. Being aggrieved by the said order, the appellant (original plaintiff) has preferred the present Appeal from Order challenging the same and also preferred Civil Application No.10544 of 2008 therein, seeking injunction requesting to restrain the respondent Nos.5 to 7 from dispossessing the applicant/ appellant from rented premises which is known as “Madichi Jaga” bearing Grampanchayat No.880, situated within the limits of Karjat, Taluka Karjat, District Ahmednagar and more particularly described in para 1-A of Special Civil Suit No.16/2008 on the file of learned Civil Judge, Senior Division, Shrigonda, District Ahmednagar. The respondents appeared and respondent No.5 filed reply in the said Civil Application and the appellant/ plaintiff has filed a rejoinder thereto. 4. At the outset, the appellant (original plaintiff) has placed reliance on the agreement dated 26.11.1979 and claimed possession over the total City Survey No.420. On perusal of the contents of the said agreement, it was seen that there was exchange of house No.508 i.e. present suit property and house 3 No.618 between the plaintiff and defendant No.2. However, subsequently, it appears that the said agreement was impounded. 5. On the face of the said position, the learned counsel for respondents pointed out that the partition deed was executed between the appellant’s father and uncle on 13.5.1986 and the Grampanchayat House No.508 was allotted to plaintiff’s brother Amrutlal and House No.618 was allotted to plaintiff and accordingly, their names were also mutated in the Grampanchayat record. It also appears that there were revenue proceedings between the parties and the appellant i.e. original plaintiff has given admissions that House No.508, i.e. City Survey No.420 was allotted to Amrutlal Virchand Shah and Shantilal Nanchand Shah. 6. Apart from the said position, learned counsel for respondents pointed out that respondent Nos.1 to 4 have executed registered sale deed in favour of respondent Nos.5 to 7 in respect of the said City Survey No.420 on 11.1.2008 and the learned counsel for respondents also invited attention on the very fact that the possession of the suit property was handed over by respondent Nos.1 to 4 to respondent Nos.5 to 7 and there is specific mention in that respect in the said sale deed. Subsequently, it is also pertinent that the names of the said purchasers were entered in the City Survey extracts in pursuance of the said registered sale deed. The learned counsel for the respondents further pointed out that since the suit property in question was in 4 dilapidated condition, the Grampanchayat, Karjat, District Ahmednagar issued a notice dated 11.7.2008 to respondent Nos.5 to 7 and copies of photographs of the said property are produced at Exh. R-11, which conforms to the said proposition. 7. Keeping the aforesaid aspects in mind and coming to the impugned order passed by learned Civil Judge, Senior Division, Shrigonda on Exh.5 dated 17.9.2008, apparently it is seen that the learned Judge has held that the appellant (plaintiff) could not establish a prima facie case nor establish his title and possession over the suit property and, therefore, rightly rejected the said application (Exh. 5) and the impugned order cannot be faulted with. 8. In the result, apparently there is no substance in the Appeal from Order preferred by the appellant and the same stands dismissed at the stage of admission itself. (S.P. DAVARE, J.) fmp/ao97.08