1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.508 OF 2009 IN APPEAL FROM ORDER NO. 422 OF 2009 Manju Narendra Gupta & Anr. ....Appellants Versus Meenakshi Ashok Patil & Ors. ....Respondents. Mr.P.K.Dhakephalkar, Sr.Counsel with Mr.Rakesh Pandey i/b. M/s.Ashwin Ankhad & Associates for the Appellant. Mr.V.A.Thorat, Sr.Counsel with Mr.Vaibhav Sugadave i/b. M/s.Tamhane & Co. for Respondents. CORAM : R. V. MORE, J. DATED : 20TH APRIL, 2009. P.C. Heard, Mr. Dhakepalkar and Mr.Thorat, learned senior Counsel for the respective parties. 2. The Applicants are the Original Defendant Nos.4 and 5, the Respondent Nos.1 to 5 are the Plaintiffs and Respondent Nos.6, 7 & 8 are the Original Defendant Nos.1 to 3. The Suit was filed for declaration that the Defendant Nos. 1 to 3 are not entitled to sell, transfer, alienate or encumber the suit property. The Respondent Nos.1 to 5/Plaintiffs had also filed Notice of Motion at Exhibit-5. The prayer (a) in the Notice of 2 Motion was for appointment of Court Receiver. Prayer (b) is about interim injunction restraining Applicants and Respondent Nos.6,7 & 8 from carrying further construction. Prayer(c) is about interim injunction restraining the Applicants and Respondent Nos.6,7 & 8 from creating third party interest in the suit property. By the impugned order, the Trial Court rejected prayer (a) of the said Notice of Motion, however granted interim relief interms of prayer clauses (b) and (c). 3. Though the Respondent No.1 to 5 claims to be the joint owners alongwith Respondent Nos.6, 7 & 8 they have not filed any suit for declaration that the suit property is joint family property and they have got undivided share in the suit property. The Applicants relied upon the family arrangement of 1987. This family arrangement makes reference to partition of 1970. Under this arrangement, the suit property was given to the share of Respondent Nos.6, 7 and 8. In the year 1987, the Respondent Nos.6, 7 & 8 entered into Development Agreement with the Applicants and the other alleged shareholders signed the agreement as confirming parties. The Respondent Nos. 6,7 & 8 entered into conveyance with the applicants in the year-2003 and thereafter the Applicant got NA permission from the Office of the Collector on 17.08.2004 and on 1st September, 2004 IOD/CC for development of the suit property was obtained by the Applicants. The Suit however, is filed on 15th November, 2008. Mr. Dhakepalkar, learned Counsel submits that the construction has progressed. If the aforesaid dates are taken into consideration, then I am of the prima-facie view that Respondent Nos.1 to 5 have not approached the Court expeditiously. 3 4. It is not disputed by Respondent Nos. 1 to 5 that Respondent Nos. 6,7 & 8 have atleast 1/3 share in the suit property. The Applicants on the contrary claims that Respondent Nos. 6,7 & 8 are the absolute owners of the property. Whether the document mentioned above is a family arrangement or partition or transfer of share can be decided at the time of the hearing of the suit. However, in view of the facts and circumstances mentioned above I am of the prima-facie view that interest of the Respondent Nos.1 to 5 could have been protected by granting interim relief interms of prayer clause (c) and there was no necessity to grant further interim relief in terms of prayer clause (b) of the Notice of Motion. In that view of the matter there shall be stay to operation of the impugned order so far as it grant interim relief in terms of prayer clause (b) of the Notice of Motion. 5. Needless to mention that the construction carried out by the Applicants on the suit property will be at the risk of the Applicants and subject to outcome of the suit. The Civil Application is disposed of, accordingly. (R. V. MORE, J.)