1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.80 OF 2009 Shaikh Kasim S/o.Shaikh Mannu Chaudhary APPELLANT VERSUS Shaikh Muneer Shaikh Mannu Chaudhary, and others RESPONDENTS Mr.A.N.Dabir, learned counsel for appellant. Mr.A.S.Bajaj, learned counsel for respondent no.8 to 15 (CORAM : A.V.POTDAR, J.) DATE : 18/03/2010 PER COURT : 1. Being aggrieved by the order passed by C.J.S.D. Aurangabad on Exh.5, application for temporary injunction under Order 39 Rule 1 and 2 in Spl.C.S.No.81/2009, filed by the present appellant plaintiff, which came to be rejected vide order dated 07/05/2009, the appellant/plaintiff is before this Court challenging the impugned order. 2. By consent of the parties, heard finally at the stage of admission. 2 3. According to learned counsel for appellant the appellant and respondent no.1 to 4 are the brothers interse and respondent no.5,6, and 7 are the sisters of appellant. According to the appellant, he claimed through one Shaikh Mannu, their father and doing the business in the name and style of Chaudhari Brothers. From the properties acquired from Shaikh Mannu, after his demise on 19/04/1985, the appellant and his brothers continued the business transaction as tenants in common from the properties survived left behind by Shaikh Mannu and out of the proceeds of their business, suit property admeasuring 60 x 50 ft in CTS No.17972 in Samtra Nagar was acquired by the 4th respondent on behalf of all. It is claimed that the respondent no.8 to 15 acquired those properties from the said respondent no.4 and now trying to alienate the said property, hence the suit for partition and separate possession in said plot of land at Samta Nagar in which injunction is claimed under Order 39 Rule 1 and 2, for not to alienate the property during pendancy of the suit. It appears that in the Lower Court, this application was contested by respondent no.8 to 15 as the society has acquired this plot on 05/06/1959 under the registered sale deed and they are not the purchasers of this property from respondent no.4. Respondent no.4 as claimed by the appellant, acquired this property somewhere in the year 1988. In the say filed by these respondents to the application for temporary injunction, they have given the history of litigation as the respondent no.4 obstructed their possession over the suit property, hence the suit came to be filed bearing no.RCS No. 129/93 in the Court of Civil Judge, S.D. Aurangabad. This suit was 3 filed for declaration and perpetual injunction which came to be decreed, which decree came to be challenged by way of RCA No. 259/1999, which was also lost by respondent no.4. Again the judgment was challenged in the 2nd Appeal No.460/2002, where also the 4th respondent lost the battle against which SLP was preferred before the Apex Court bearing No.3515/2003. That also came to be dismissed. Thereafter, Regular Darkhast/Execution Proceeding was filed before the Civil Judge, J.D. Bearing no.161/2006. During the execution proceeding, obstruction application was moved by the so called tenant of respondent no.4. That also came to be dismissed against which Writ Petition No.4062/2008 and W.P. No.7014/2008 were preferred before the Bench of this Court. After those writ petitions were dismissed, the decree got executed on 26/02/2009 in which the possession was sought for and these respondents no.8 to 15 came in possession of the suit plot. 4. During the course of submissions across the bar, it is contended by learned counsel appearing for the appellants that even though there is no concept of joint family amongst the Mohammedan, but there is concept of tenants in common. The property acquired by respondent no.4 was alienated by him, which property was acquired in the year 1988 from the funds of joint business of the tenants in common and for which reliance is placed on the judgment reported in AIR 1970, Madras 200, in the matter of Maimoon Bivi and another Vs.Khajee Mohideen and another. It is observed in this judgment in para no. 3,4 that if there is nexus established between the property acquired 4 and the funds from the deceased, then the tenants in common are entitled for the share in the said property. On perusal of the entire judgment, it appears that this judgment is the offshoot of LPA in the interim order passed in the First Appeal, which was preferred against the decree in the suit for possession, where the evidence was recorded and it is established that the property was acquired from the funds left and hence the tenants in common have share therein. From the judgment of the Lower Court, one can find that there are observations of 2 fold basis, first so far as the alleged transaction about the purchase of the property in the year 1988, in the name of 4th respondent from the funds received from the business in the name of Chaudhary Brothers by the appellant and his other brothers, do not stand and secondly that if the suit is filed for partition, when these appellants claimed that number of properties were acquired by the business run by Chaudhary Brothers, all those properties were not included in the suit for partition. On careful perusal of the entire plaint and pleadings therein, one can not find, what is the reason to file the suit for partition of one property, wherein the remaining properties were excluded. Pleading is not supported by the documentary evidence and it is rightly observed by the Trial Court while rejecting the application below Exh.5. It is to be noted that no nexus appeared to be established about the property in the hands of respondent no.8 to 15 as they acquired this property from respondent no.4. In the premise, as no nexus is established between the acquisition of property by the contesting respondent no. 8 to 15, from respondent no.4, it can not be said that the property in 5 dispute was the property of appellants and his family. If it is so, no interference is required in the order passed below Exh.5 by the Trial Court in Spl.C.S.No.81/2009. AO sans any merit,hence rejected. (A.V.POTDAR, J.) khs/MAR 2010/ao80-09