kbp 1 4789-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4789 OF 2009 Baban (Babanrao) Abu @ Aburao Ingulkar since deceased through Lrs. and ors. ..Petitioners Vs. Balu (Balaso) Abu @ Aburao Ingulkar ..Respondent ....... Mr.A.P.Kulkarni, for petitioners. Mr.S.N.Chandrachood, for respondent. ....... CORAM : A.S.OKA, J.. DATE : 1 st OCTOBER, 2009. P.C. : 1] Heard learned counsel for the parties. 2] The petitioners are the defendants. The case made out by the respondent - plaintiff in the suit is that the suit property bearing gat no.338 admeasuring 95 Are was an ancestral property. The case made out in the plaint is that one Aburao was the owner of the suit property along with the other properties. Baban, the predecessors of the petitioners no.1A to 1F and the respondent are the real brothers. They are the real sons of Aburao. Baban executed a registered sale deed in respect of a part of the property admeasuring 20 Are in favour of the second petitioner (second defendant). The suit is essentially filed by the respondent to enforce right of pre-emption under Section 22 of the Hindu Succession Act, 1956. kbp 2 4789-09.sxw 3] An application for temporary injunction made by the respondent was rejected by the trial court. The appellate court in the appeal has interfered and granted temporary injunction in the following terms:- 1. The present Misc.Civil Appeal is allowed with costs. 2. The impugned order dated 6.12.2008 passed by the 8 th Jt. Civil Judge, S.D.Pune in Sp. Civil Suit No.1652/2008 is hereby quashed and set aside and the Exh.5 in said special Civil Suit stands allowed. 3. The defendant no.2 is hereby restrained from dispossessing the plaintiff from the suit premises without due process of law and defendant no.2 is further restrained from creating any 3 rd party interest in the suit land. 4. Inform the lower court accordingly. 5. Dictated and pronounced in open court. 4] Learned counsel for the petitioners submitted that in any event the suit filed by the respondent is not for partition and he submitted that in view of the law laid down in the case of Ramlal Maniram Navdhinge Vs.Maniram Patiram Navdhinge and ors [2008(1) Mh.L.J.], the suit filed by the respondent is not maintainable and he should have filed a suit for general partition. It is submitted that the findings recorded in paragraph 22 of the impugned judgment and order are perverse. 5] I have carefully considered the submissions. There is no prima facie kbp 3 4789-09.sxw material placed on record on record to show that there was a partition after the demise of Aburao. Admittedly, Baban, the predecessor of the petitioner nos.1A to 1F was having an undivided share in the property bearing gat no.338 admeasuring 95 Are. The second petitioner claims to have purchased an area of 20 Are under the sale deed dated 1 st February, 2008. The prima facie finding recorded by the appellate court is that there is no material on record to show that the second petitioner was actually placed in possession of the area of 20 Ares. Prima facie, the said finding appears to be correct in as much as in absence of the partition it cannot be said that the predecessor of the petitioner nos.1A to 1F was in exclusive possession of area of 20 Ares. Therefore, it is not possible to find fault with the prima facie finding recorded by the appellate court that there is no material on record to show that the second petitioner was placed in possession of area of 20 Ares. At this stage the issue regarding maintainability of the suit cannot be decided and the said issue will have to be kept open. Suffice it to say that there is no reason to interfere with the discretionary order of temporary injunction of the appellate court. 6] The petition is accordingly rejected. It is made clear that the observations made by the District Court and this Court are tentative observations and the suit shall be decided without being influenced by the said observations. ( A.S.OKA, J. )