1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR APPEAL AGAINST ORDER NO. 86 OF 2010 (Keshaorao Jairamji Gawate vs. Vishwanath s/o Jairamji Gawate & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. SEPTEMBER 07, 2010. Heard Shri Deshpande, learned counsel for the appellant and Shri Bargat, learned counsel for the respondents. The appellant filed a suit for declaration that sale deed dated 28.07.2009 executed by his brother i.e. Respondent No. 1 in favour of Respondents No. 2 & 3 is null and void. He further claimed to be in exclusive possession and, therefore, sought temporary injunction to protect that possession. The trial Court has rejected that prayer. Thereafter present appeal has been filed. The trial Court, however, continued status quo and that status quo has also been continued by this Court while issuing notice in the matter on 16.07.2010. Shri Deshpande, learned counsel states that the property in dispute though purchased in the name of Respondent No. 1 was thrown in common hotch pot and after death of the father of the appellant and Respondent No.1 in 1989, the brothers separated. The appellant then continued in possession and he contributed some 2 income and agricultural produce. He further states that Respondent No.1, therefore, could not have sold that property and when on the basis of said sale deed, mutation notice was issued to the appellant, he got knowledge of the sale deed. He has contended that the documents prior to execution of sale deed showing exclusive possession of the appellant and prepared by public authorities clearly show absence of possession of Respondent No.1 and hence while considering the prayer for temporary injunction, the trial Court has failed to consider these vital aspects. He has also invited attention to the order of Tahsildar passed in mutation proceedings to urge that the Tahsildar also visited spot and found the appellant in possession. Shri Bargat, learned counsel states that sale deed has been obtained in 1982 by Respondent No. 1 and property belongs to Respondent No.1 exclusively. It was never thrown in common hotch pot. He further contends that from 1982 till execution of sale deed, the property remained in exclusive name of Respondent No.1 in revenue records. According to him, only after 2008, the appellant has prepared some documents to establish his so called exclusive possession and those documents have been rightly appreciated by the trial Court. He further states that as of today, Respondents No. 2 & 3 are in possession. The trial Court has considered the relevant events. It has found that property was purchased in the 3 name of Respondent No. 1 in 1982 and revenue records disclosed his possession. The father expired in 1989 and even after death of father, the appellant did not take any steps to have his name entered in revenue records. The documents to which attention has been invited by the learned counsel for the appellant show that on the relevant dates on which those documents are prepared, the appellant was found in possession. The question whether it is joint family property or then exclusive property of Respondent No.1, is a debatable question. The appellant has in his plaint in para 6 stated that the property was thrown into common hotch pot meaning thereby that he never contended that the property was purchased out of joint family funds. After the death of father, he has stated that the appellant and Respondent No. 1 separated themselves in residence as well as in mess. If that be the position, again why after 1989, there was no mutation obtained in the name of the appellant, is a question which needs answer. He has thereafter stated that the appellant is in actual physical possession and he is cultivating the suit field. However, he has continued to provide some income and agricultural produce of the suit field to Respondent No.1. If there was any partition in 1989, the purpose behind such arrangement, if any, is not understood. In view of this material, I find nothing wrong with the appreciation of controversy by the trial Court. 4 However, the property needs to be preserved during the pendency of suit and hence the parties are directed not to create any third party interest in it and not to alter its status or nature during the pendency of suit. With these observations and directions, Appeal against Order is rejected. However, there shall be no order as to costs. JUDGE *GS.