1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD APPEAL FROM ORDER NO. 127 OF 2010 1] Hiralal S/o Dulichand Choudhary 2] Ganesh S/o Dulichand choudhary Age 28 years, Occu. Business 3] Ramesh S/o Dulichand Choudhary, Age 26 years, Occu. Business, 4] Sow. Lalitabai S/o Dulichand Choudhary, Age 52 years, Occu. Household, All R/o Somesh Colony, Vazirabad, Nanded. ...Appellants Versus 1] Munnalal S/o Kishanlal Choudhary Age 62 years, Occu. Business, R/o Near Peoples High School, Gokulnagar, Nanded. 2] Dulichand S/o Kishnalal Choudhary, Age 55 years, Occu. Business, R/o Somesh Colony, Vazirabad, Nanded. 3] Gulabchand S/o Kishanlal Choudhary, Age 46 years, Occu. Business, R/o Near Peoples High School, Gokulnagar, Nanded. ...Respondents ..... Mr. S.S. Rathi, advocate for the appellants Mr. D.R. Shelke, Advocate for respondent Nos.1 to 3 ..... CORAM: S. S. SHINDE, J. DATE OF OF ORDER :29.10.2010 2 PER COURT :- 1 Heard learned Counsel for the appellant and learned Counsel appearing for the respondents. The learned Counsel appearing for the appellant submits that the findings recorded by the Court below is perverse and based upon no evidence. On the contrary, there was sufficient material on record to show that the suit properties are ancestral properties and there was no partition effected, as alleged by the defendants. According to the counsel for the petitioner / appellants that the application for temporary injunction should have allowed in its entirety. The learned Counsel appearing for the appellants submitted that while deciding the application for temporary injunction at this preliminary stage Court below was proceeded on the assumption that partition is already effect among the respondent Nos. 1 to 3, and the plaintiff can claim partition from the share of the defendant NO. 2. It is to be appreciated that without there being any leading of evidence and appreciation of the same, Court below should not have come to conclusion about earlier partition and should not have restricted the order to the share of defendant No. 2 only. The learned Counsel appearing for the appellants further submitted that, this Court as well as the Apex Court had already held that, to avoid the multiplicity of the proceedings, such type of injunction should be granted. In the instant case, present appellants had made out prima facie case and even on the admission of the defendants, that the suit properties are ancestral 3 properties, the application for temporary injunction should have been allowed in its entirety. The learned Counsel appearing for the appellants also further submitted that in entire body of the judgment all the issues are decided in favour of present appellants i.e. Original plaintiffs. There is nothing in entire judgment that, why relief for temporary injunction is restricted to the defendant No. 2 alone. On the contrary, all the defendants and plaintiffs are coparceners of the Joint Hindu Family. On this ground also the appeal deserves to be allowed. The learned Counsel further submitted that, plaintiffs have made out prima facie case, and balance of convenience is in favour of original plaintiffs i.e. present appellant. It is further to be appreciated that if injunction as prayed is not granted irreparable loss will be suffered by the present appellants and there will not be any prejudice to the original defendant Nos. 1 & 3, if injunction as prayed is granted. This point was also not considered by the Court below while deciding the application for temporary injunction. 2 On the other hand, Counsel appearing for the respondent invited my attention to the affidavit in reply, and also Written Statement before the Court below and the provisions of Hindu Succession Act and more particularly Section 5,6, 7 & 8 and submitted that Appeal From Order is devoid of any merits and same deserves to be dismissed. The learned Counsel further submitted that the suit properties are not Joint Hindu family properties of plaintiffs and 4 defendants. The defendants and their family members reside separately since more than 20 years. It is further submitted that the suit properties are separate properties. It is further submitted that the suit is filed by the appellants to harass the defendants. The Criminal case is pending against the plaintiff before Chief Judicial Magistrate, Nanded. The mother of the defendants namely Radhabai W/o Kishanlal Choudhary was the only daughter to her parents. Her parents were quite rich. The parents of mother of defendants presented her 25 Tolas of gold and one Kilogram silver and 4 she- buffalo in her marriage with Kishanlal Choudhary. The mother by selling silver and gold ornaments and by selling milk with her own self earnings purchased the agricultural land survey No. 25, admeasuring 24 Acres 12 R situated at Hassapur, Tq. & Dist. Nanded jointly to the extent of half each with Munna S/o Ramchandra Gavali R/o Nanded from Eknath S/o Gangusing Rajput, the original owner of the land for consideration of Rs. 8000/- vide registered sale deed with the office of Sub Registrar, Nanded on 26th April, 1962. It is further submitted that, Radhabai W/o Kishanrao Choudhary has become exclusive owner and possessor of survey No. 25/B to the exten fo 12 Acres 6 R i.e. 4 H 93 R inlcluding the pot-kharb in revenue record. The leraned Counsel invited my attention to the contents of the Written Statement filed before the Court. The learned Counsel further submitted that Radhabai being the real mother of defendant Nos. 1 to 3 gave equal share in survey No. 25/B in partition to the defendant Nos. 1 to 3 before her 5 death. In the partition the land to the extent of 1 Hector 64 R each was given to defendant Nos. 1 & 2 (Munnalal & Dulichand) and 1 Hector 65 R to defendant No. 3 (Gulabchand). The mutation regarding this partitioned was recorded in the revenue record. Thus, the defendant Nos. 1 to 3 become owner and possessor which came to their share out of survey No. 25/B. The defendants also partition house properties under memorandum of partition dated 25th June, 2001. The learned Counsel further submitted that the suit properties are self acquired properties of the defendants and the plaintiffs cannot claim any share therein. The Trial Court restricted the order of injunction from alienating or creating any third party interest in the suit property which awarded in the share of defendant No. 2. But even injunction as against the share of defendant Is No. 2 is not legal proper and correct. Therefore, Counsel would submit that the Appeal From Order and also Civil Application deserves to be dismissed. 3 I have given due consideration to the rival submissions, also carefully perused the impugned Order. In para No. 8 of the said impugned Judgment and Order, the Trial Court below has observed that the said property was acquired or purchased as a joint family property by common efforts of all the joint family members. However, on perusal of the Written Statement filed by the defendants before the Trial Court, the said finding record by the Trial Court does not appear to be sound based upon any evidence. The Trial Court, taking into 6 consideration evidence brought on record by the parties, came to the conclusion that the defendant Nos. 1 to 3 or their agents or any body claiming through the defendants are temporarily restrained from alienating or creating any third party interest in the suit property which awarded to the share of defendant No. 2. It is admitted position that the defendant No. 2 is father of the plaintiffs . The Trial Court has rightly temporarily restrained from alienating or creating third party interest in the suit property which awarded the share to the defendant No. 2 i.e. father of the plaintiffs. Therefore, in my opinion, the Trial Court has taken possible view, at the initial stage of suit. The other points can be considered at the time of recording the evidence and final hearing of the suit. Ultimately if the plaintiff succeeds in the suit, Section 52 of the Transfer of Properties Act, will take care to protect the interest of the plaintiffs. Therefore, in my opinion, the Trial Court has exercise its discretion reasonably and taken possible view. Therefore, this Appeal From Order is devoid of any merits and same deserves to be dismissed, and accordingly the same stands dismissed. Consequently, the Civil Application stands rejected, ad-interim relief granted in favour of appellants stands vacated. [S.S. SHINDE, J] SDM*127.10AO 7