: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.777 OF 2008 WITH CIVIL APPLICATION NO.932 OF 2008 M/s.Shree Ram Builders ..Appellant. Vs. Jainab Bi Mohamad Ibrahim Maulvi & Ors. ..Respondents. Mr.P.K.Dhakephalkar i/b.Mr.Amol P. Mhatre for the Appellant. Mr.S.I.Menon for Respondent no.6. CORAM : S.J. VAZIFDAR, J. CORAM : S.J. VAZIFDAR, J. CORAM : S.J. VAZIFDAR, J. DATED : 11TH DECEMBER, 2008 DATED : 11TH DECEMBER, 2008 DATED : 11TH DECEMBER, 2008 P.C. : P.C. : P.C. : I am not inclined to interfere with the impugned order in so far as it refuses to grant an injunction. I am however inclined to only modify the order slightly. 2. The suit is filed for specific performance of an alleged agreement dated 21.2.1987 with 62 co-owners. The Appellant/Plaintiff claims to have settled the matter with 34 co-owners. The issue is still outstanding with the remaining 24 co-owners. : 2 : 3. There is nothing of any substance which has been done by the Appellant for almost 21 years, atleast in respect of the Defendants co-owners. It is pertinent to note in fact that in paragraph 12 of the plaint it is averred that in 1998 itself the Defendants were adamant and non-cooperative. Despite the same, even from 1998 no proceedings had been initiated. 4. Prima-facie atleast, this averment itself indicate a refusal to perform and the knowledge of the Plaintiff thereof in 1998. 5. The receipts which allege payment to the constituted attorney of the co-owners, are of little significance atleast as far as these Defendants are concerned. The receipts indicate the alleged payment of various amounts. There is no explanation as to the reasons for the payment, the purpose of the payment. Nor is there any co-relation of the payment with the suit agreement. 6. The Plaintiff’s case is that there was a partition between the co-owners and that pursuant thereto the Plaintiff has settled with 34 of the co-owners. : 3 : 7. On the other hand, the Defendants in their written statement contend that the property is undivided and that therefore the said 34 co-owners also have no right to deal with anybody. This contention is misconceived. The 34 co-owners even in the absence of a partition would have been entitled to part with their undivided share in the property. 8. However, assuming that the property remains undivided, it is only proper that if the Defendants intend creating any third party rights in respect of the suit property, they ought to inform such third party of the pendency of the present proceedings. This is agreed to on behalf of the Respondents. 9. The only question that remains is one of possession. On the basis of the record alone, it is difficult to determine this question. It is desirable that the trial Court appoints a Commissioner for inspecting the suit property and making a report on the question of possession. The parties are at liberty to make an application before the trial Court in respect of possession thereafter. : 4 : 10. The impugned order will not be binding in the sense that the trial Court will decide the issue regarding possession, also after taking into consideration the report made by the Commissioner. 11. The Appeal from Order and the Civil Application are disposed of. 12. The order of status-quo shall be continued upto 28.2.2009. ***