:1: :1: :1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1322 OF 2008 IN FIRST APPEAL NO.2510 OF 2007 Laxmibai Bhimaji Yadav and Ors. ....Appellants V/s. Prabhakar Sadashiv Mule ....Respondents. and Ors. ====== Ms.Jai V.Mhaskar i/by.Girish Godbole, Adv. for the Appellants. Shri.Sajeev Sawant, Adv. for Respondent nos.1, 3, 4, 5 and 7. CORAM: SMT.RANJANA DESAI, AND SMT.R.P.SONDURBALDOTA, JJ. DATED: 6TH MAY, 2008. P.C. P.C. P.C. : : : 1. The applicants are original appellants-plaintiffs. In the instant appeal, they have challenged the judgment and decree dated 17.8.2007 whereby suit filed by them for declaration and :2: :2: :2: possession in respect of the suit properties is dismissed. 2. The Appeal has been admitted by this court. 3. In this Civil Application, the applicants have prayed that the respondents be restrained by an order of injunction from selling and/or creating third party rights and interest in the suit properties, better described in paragraph 1B to 1D until, final disposal of the instant first Appeal. 4. Admittedly, the first respondent is the contesting respondent/defendant. It is an admitted position that at no stage during the pendency of these proceedings, the plaintiffs succeeded in getting any injunction order from the court. The first defendants case rests on Will dated 12.2.2008, of one Baburao Mule, who is the father of the plaintiffs. According to the first defendant, Baburao Mule has bequeathed the suit properties to him. The plaintiffs are disputing the Will and they claim to be the owners of the suit properties. The trial court after perusing the :3: :3: :3: evidence on record, came to the conclusion that Baburao Mule executed the Will dated 12.2.1988 and bequeathed the properties to defendant no.1. The trial court also held that the plaintiffs have failed to prove that defendant no.1 took illegal and forcible possession of the suit properties in December, 2005. The trial court further held that the suit is not within limitation. A finding is also recorded that the plaintiffs have failed to prove that the Will dated 12.2.1988 is illegal, null, bogus and void. 5. We have heard at some length, the learned counsel for the applicants. She submitted that the applicants have a very good case on merits and fair chance on success. She submitted, that admittedly, Baburao the father of the applicant was the exclusive owner of the suit properties. She further submitted that the appeal having been admitted, if this court does not pass an order of injunction restraining the respondents from alienating the suit properties, the appeal will be frustrated. She submits that in the circumstances, the injunction as prayed may be granted. :4: :4: :4: 6. Mr.Sawant, learned counsel for the respondents, on the other hand submitted that the trial court has categorically held that the plaintiff has failed to prove that the Will dated 12.2.1988 is bogus, null and void. Baburao bequeathed his entire properties to the first defendant. Mr.Sawant, submitted that this court should not at this belated stage, pass any order of injunction. He pointed out that in the trial court the plaintiffs were not successful in getting any injunction order. 7. In the Civil Application, The plaintiffs have stated that since defendant no.1 had never initiated probate proceedings to prove the alleged Will dated 12.2.1988 and since merely on the basis of the mutation revenue record, the original defendants could not have claimed any title in the suit properties, the plaintiffs did not seek injunction against the defendants. It is further stated that, however, as the suit is dismissed on the basis that defendant no.1 has proved the execution of the Will dated 12.2.1988, the applicants apprehend that on the basis of the impugned judgement, the defendant may create third party :5: :5: :5: interest in the suit properties. Prima-facie this explanation does not appear to us, to be acceptable. The fact that the Trial court had at no stage, passed any restraint order against the first defendant is a very material circumstance which needs to be taken into account while dealing with an application for injunction, at this stage. In our opinion, in the facts of this case it is not possible to pass any injunction order as prayed for by the applicants. 8. So far as, the House bearing No.865 is concerned, Mr.Sawant has submitted that third party interest has been created in this House by deceased, Baburao. Therefore, no injunction order can be passed with regard to that House. 9. So far as, Gat No.170 is concerned, Learned counsel for the applicant contended that Gat no.170 belongs exclusively to deceased Baburao whereas, Mr.Sawant submitted that this property jointly belonged to father of defendant no.1 Sadashiv and deceased Baburao. At this stage, it is not possible to express :6: :6: :6: any final opinion on this aspect. However, in the circumstances of the case, we direct the first defendant not to dispose off his alleged 50% share in Gat no.17. He should not create any third party interest in the same. 10. So far as the property described in paragraph no.2C is concerned, it is pointed out to us, that this property was with the Administrator General, State of Maharashtra. It was purchased by deceased Baburao. Admittedly it is a tenanted property and therefore no injunction order can be passed in respect thereof. Civil Application is disposed off in the above terms. sd/- sd/- (SMT.R.P.SONDURBALDOTA, J) (SMT.RANJANA DESAI, J)