{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.43 OF 2010 Mr.Govindrao Ramchandra Kunde & others APPELLANTS VERSUS Suresh Govindrao Kunde & others RESPONDENTS ....... Mr.R.F.Totla, Advocate for the appellants Mr.R.N.Dhorde h//f Mr.N.P.Ghanwat, Advocate for R-1 and 2 ....... [CORAM : A.V.POTDAR, J.] DATE: 3rd May 2010 PER COURT: 1. The present Appeal From Order arises out of the order passed below Exhibit-14 in Special Civil Suit No.338/2008, an application for temporary injunction which came to be allowed 18.02.2010. 2. By consent of the parties, the present Appeal From Order is heard finally at the stage of admission itself. 3. Learned counsel for appellant submits that the impugned order is passed by the learned lower court without hearing all the defendants. However, admittedly, the impugned order is passed after hearing the present appellants. It is to be {2} noted that the defendants, who were not heard before passing the impugned order, are not appellants before this Court as aggrieved parties. On the contrary, the notice of these defendants, who are arrayed as respondents in this appeal was dispensed with at the request of learned counsel for the appellants, as according to the appellants, these respondents are formal parties as they are supporting the appellants and hence not necessary to issue any notice to the said respondents. This goes to show that the appellants are clubbing hot and cold in one breath, which is not permissible in law. 4. Admittedly, respondent No.1 has filed a suit for partition and possession in respect of the properties mentioned in the scheduled annexed with the plaint, Special Civil Suit No. 338/2009 on the file of Joint Civil Judge, Senior Division, Aurangabad. In the said suit, initially no application for interim injunction was filed. However, record shows that the said suit was filed on 03.08.2009,the plaint was examined and numbered on 07.08.2009 and order of issuance of summons was passed on 11.08.2009 and suit summons were made returnable on 20.08.2009. It appears that initially order to proceed exparte was passed against defendants No.1 to 6 and 8 to 10. However it further appears that the said order was modified thereafter on 12.11.2009 in respect of defendants No.1 to 3, who are present appellants. It appears that on 10th September 2009, application for interim injunction was moved at Exhibit-14 and application for {3} appointment of court receiver was moved at Exhibit-16. It appears that replies were filed to these applications on 18.11.2009 by the appellants by filing say at Exhibit-26. According to present appellants, the suit filed by the plaintiff for partition and separate possession is not maintainable as already partition of the said property has been effected between the defendants and the plaintiff. It is also tried to urge that this partition, which was effected on 13.07.2007, was reduced into writing and subsequently all the concerned are put in possession of the properties which came to their share and they are enjoying the same. Admittedly, the original partition did is not on record. Though it is averred that the parties are enjoying the properties came to their share, yet this partition was not effected in the revenue and municipal records. In support of this partition, affidavits of the witnesses to the partition deed are filed at serial No.2 along with Exhibit-33 before the lower court. However, after perusing the affidavit, I am afraid to say that the said documents are affidavits, as the places for “documents explained to me and admitted by me” are kept blank. Apart from it in para 8 of the impugned order passed below Exhibit-14, it is specifically observed by the learned trial court that in the said partition deed, the shop given to the share of the first respondent / plaintiff was sold by defendant No.6, who is also a party to the present appeal and then question was raised by the lower court that if the theory of partition to be accepted with further explanation that the parties are enjoying the properties came to their share, then how the property came to the share of plaintiff {4} was sold by somebody else and accepted consideration amount of the said property. On this basis, the learned lower court came to the conclusion that the theory of partition of the joint family property, as tried to be projected by the present appellants, did not appear to be probable. From the perusal of the documents produced before the lower court I do not find that the so called partition was effected. If the so called partition was not effected then it is a mere paper work without any consideration and cannot be considered at the stage of hearing of temporary injunction application. In the premise, the impugned order passed by the lower court below Exhibit-14 in Special Civil Suit No.338/2009 that till the disposal of the suit the appellants and respondents are prohibited from alienating the property in any manner, requires no interference. 5. Consequently, the Appeal From Order, which is sans merits stands rejected. The Record and Proceedings be sent back forthwith. 6. It is, however, clarified that the observations in this order are prima facie, and the learned lower court need not be influenced with the same while deciding the suit finally. [A.V.POTDAR, J.] drp/B10/ao43-10 {5} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.4023 OF 2010 IN APPEAL FROM ORDER NO.43 OF 2010 Mr.Govindrao Ramchandra Kunde & others APPELLANTS VERSUS Suresh Govindrao Kunde & others RESPONDENTS ....... Mr.R.F.Totla, Advocate for the appellants Mr.R.N.Dhorde h//f Mr.N.P.Ghanwat, Advocate for R-1 and 2 ....... [CORAM : A.V.POTDAR, J.] DATE: 3rd May 2010 PER COURT: 1. As the Appeal From Order itself is dismissed, the present civil application does not survive. Accordingly, the civil application stands disposed of. [A.V.POTDAR, J.] drp/B10/ao43-10