1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD APPEAL FROM ORDER NO. 22 OF 2009 Jayshree w/o Shyam Hundiwala ...Appellant VERSUS Laldas s/o Pannalal Shah and ors. ...Respondents ..... Shri D.S.Bharuka, advocate for the appellant (orig.plaintiff) Shri S.V.Gangapurwala, advocate for respondent no.1 (original defendant no.1) ..... Coram : Shrihari P. Davare, J. Dated : 13 th July, 2009. ORAL ORDER : 1 Perused. With the consent of parties taken up for final hearing at admission stage. 2 This Appeal from Order emerges out of the order 2 passed by the leaned 5th Joint Civil Judge, Senior Division, Aurangabad, below Exh.5 in Special Civil Suit No. 444 of 2008 on 24.11.2008. 3 The appellant (original plaintiff) filed the suit for partition and possession of the suit properties against defendant no.1 i.e. Respondent no.1 herein, her father and other two defendants and preferred an application below Exh.5 therein requesting that defendant no.1 i.e. respondent no.1 herein be restrained from alienating/claiming third party interest in the suit properties till the decision of the suit. Defendant no.1 opposed the said application. Considering rival contentions of the parties, the learned 5th Joint Civil Judge, Senior Division, Aurangasbad rejected the said application Exh.5 vide order dated 24.11.2008. Being aggrieved and dissatisfied by the said order, the appellant (original plaintiff) has preferred the present Appeal from Order requesting to quash and set aside the said order and to restrain respondent no.1 herein from creating third party interest and alienating the suit properties till the decision of the said suit. 4 Heard the learned respective counsel for the parties. 5 At the out set, it is apparent that the plaintiff has not 3 impleaded the co-sharers i.e. two sisters and one brother in the present suit as the parties although the present suit has been filed for partition and separate possession of the suit properties, which apparently gives fatal blow to the case of the plaintiff. 6 Moreover, on perusal of the contents of Exh.5 i.e. Application for temporary injunction, it s seen that there are no averments in respect of the alleged apprehension and there is no basis and foundation spelt out in the said application in respect of the alleged apprehension nor any cogent evidence produced for which the injunction was sought in the application Exh.5. Hence, the learned Trial Judge had rightly observed in the impugned order that the plaintiff has not come with a clear case that defendant no.1 had entered into any agreement of sale/mortgage to dispose of the suit properties. 7 Besides, defendant no.1 herein is undisputedly karta of the joint family properties and apparently his rights cannot be curtailed, if there is any legal necessity. The learned counsel for respondent no.1 also pointed out that the litigation and proceedings are pending in respect of some of the suit properties and some of the properties are lease hold properties, and some of the suit properties cannot be partitioned. 4 8 Thus, apparently no imminent apprehension is spelt out in the application Exh.5 in respect of prayer made therein. Besides, there are apparent legal infirmities in the very suit itself and, therefore, the learned Trial Judge has rightly rejected application Exh.5 and no interference therein is warranted in the present Appeal from Order. In the circumstances, present Appeal from Order fails and same stands dismissed at the admission stage itself. (Shrihari P. Davare, J.) dbm/ao22.09