1 AO-1035-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Mhi APPEAL FROM ORDER NO. 1035 OF 2010 WITH CIVIL APPLICATION NO. 1259 OF 2010 Haribhau Rama @ Kamba Bhagat & Anr. ... Appellants/Orig.Plaintiffs vs. Smt. Kashibai Gantya Waghmare & Ors. ... Respondents/Orig.Defendants Mr. P.S.Dani, i/b. Mr. Nitin Mulye,Advocate, for the appellants Mr.P.K.Dhakephalkar, i/b. Mr. Vinod Shinde, Advocate for the respondent No.1. CORAM: J.H.BHATIA,J. DATE : 18th July, 2011. P.C. 1. Heard the learned Counsel for the parties. 2. The original plaintiffs have preferred this Appeal against rejection of application Exhibit 5 for temporary injunction in Special Civil Suit No.162/2010 pending before the Civil Judge, Senior Division, Panvel. According to the plaintiffs, the suit land i.e. Survey No.9 Hissa No.1/1 admeasuring about 2 Hectares & 15 Ares was the ancestral property in the hands of Likrya. He had a son, namely, Gautya and a daughter, viz. Gunabai. Likrya died on 22.6.1968 leaving behind a son and a daughter. Daughter Gunabai died on 15.12.1996 2 AO-1035-10.sxw leaving behind her a son and a daughter, who are the plaintiffs. Gautya Waghmare died on 29.7.2008 leaving behind the defendants Nos. 1 to 7 as his legal heirs. According to the plaintiffs, their mother Gunabai had half share in the property. Gautya had sold 40 Ares of land out of Survey No.9, Hissa No.1/1 in favour of defendant No.8 under a registered sale deed dated 29.5.2007 and had put him in possession. According to the plaintiffs, as they had 1/2 share in the property, Gautya had no right to sell any specific portion of the property as long as the property was joint. With these contentions, they filed the suit seeking declaration that the sale deed was null and void and not binding on the plaintiffs. They also sought temporary injunction restraining the defendants from creating any third party interest in the said land admeasuring 40 Ares 3. The defendants contested the application and denied the right of the plaintiff in the property. It was also contended that after death of Likriya, 17 Ares of land was given to Gunabai even though she had no legal right in the property. Gunabai sold away that 17 Ares of land in 1991 and she never claimed any more share. 4. From the facts noted above, prima facie, it appears that as it was the ancestral property in the hands of Likrya, Gunabai could claim 1/4th share in the 3 AO-1035-10.sxw joint family property, being 1/2 of share of her father on his death. It appears that she sold away 17 Ares of land and kept quiet. After her death, her legal heirs have filed the suit. They have filed the suit simplicitor for declaration that the sale deed of 40 Ares in favour of defendant No.8 executed by Gautya is null and void and would not be binding. They have not filed the suit for partition and separate possession. In fact, they could have filed the suit for partition and separate possession and therein they could have claimed some relief. 5. The learned Counsel for the respondent No.8 points out that the plaintiffs have also entered into an agreement for sale of 1 H. land out of Survey No.9 Hissa No.1/1 in favour of some third party, even though that land is not partitioned. This conduct of the plaintiffs shows that they have not come with clean hands before the Court. In any case, out of 2 H and 34 Ares, they appear to have 1/4th share. Gautya sold only 40 Ares in favour of defendant No.8 and remaining land, which is almost 80% of the property is still available with the defendants Nos. 1 to 8, but the plaintiffs have not made any claim in respect of that property. In such circumstances, I do not find any fault with the impugned order passed by the trial court. It is settled position of law that the relief of temporary injunction is discretionary and normally the appellate Court will not interfere in the discretion used by the trial Court unless the discretion is shown to 4 AO-1035-10.sxw have been used in a perverse or illegal manner. I do not see any perversity or illegality in the impugned order. 6. Therefore, the Appeal and the Application stand dismissed. (J.H.BHATIA,J.)