* 1 * A.O. 1188.2010 1.4.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 1188 OF 2010 IN SPECIAL SUIT NO. 525 OF 2008 ALONGWITH CIVIL APPLICATION NO. 1467 OF 2010 IN APPEAL FROM ORDER NO. 1188 OF 2010 Mayuresh Manohar Patil & Ors. .....Appellants V/S. M/s. Noble Traders and anr. .....Respondents * * * * Mr. Menon with Mr. Singh i/by. A.A. Siddiquie & Associates, adv.for appellants Mr. P.S. Dani, adv.for respondent no.1. Mr. Neelesh V. Kalantri h/f. Mr. V.V. Purwant, adv.for respondent no.2 CORAM :- Smt. R.P. SondurBaldota, J. 1st April, 2011. P.C. :- 1. This appeal is preferred against the order dated 21st June, 2010 rejecting application for interim reliefs in a suit for partition filed by the appellants. Respondent no.2 is original defendant no.2. He is the * 2 * A.O. 1188.2010 1.4.2011 husband of appellant no.4 and father of appellants no.1 to 3. Respondent no.1 is the purchaser of the suit property from respondent no.2. 2. The suit for partition filed by the appellants is in respect of the property bearing Survey no. 71, Hissa No.1/A/1B4 admeasuring 1 Hectares 43.4 ares situate at Village-Jasai, Taluka-Uran, District- Raigad. Each of the appellants claim 1/5th share in the property alongwith respondent no.2. In the plaint, the appellants contend that the property is part of the ancestral property being purchased originally by the father of respondent no.2 vide sale-deed dated 13th January, 1996 from one Ganpat Benduseth Vani. The father of respondent no.2 during his lifetime distributed the property amongst four of his sons including respondent no.2 in the year 1992. Thereafter, respondent no.2 sold the property to respondent no.1 vide registered sale-deed dated 6th September, 2008. In addition to the relief of partition, the appellants also seek to avoid the sale in favour of respondent no.1. 3. The interim reliefs sought by the appellants was to restrain respondent no.1 from claiming the property. from taking forcible possession, from carrying any work of construction thereon and from bringing machineries for mining etc. In the hearing of the application for interim reliefs, respondent no.2 supported the appellants. * 3 * A.O. 1188.2010 1.4.2011 4. The application was opposed by respondent no.1 contending that the suit property is not an ancestral property but is an individual property of respondent no.2 as can be seen from the averments in the plaint itself and that the appellants could not have any present right to the property or as such seek to avoid the sale in favour of respondent no. 1. The trial court after considering the rival contentions passed a detailed order rejecting the application for interim reliefs. 5. Perusal of the plaint itself shows, that the property which was purchased by the father of respondent no.2 had been distributed by him during his lifetime amongst his four children. Therefore, the property received by respondent no.2 from his father became his absolute property and, prima-facie, cannot be said to be ancestral property. In that circumstance, the appellants can have no right to the property during the lifetime of respondent no.2. Therefore, the trial court has rightly rejected the application for interim reliefs. 6. This appeal from order was taken up for admission yesterday. When at the end of the submissions, the Court was about to pass orders, Mr. Siddiquie who had argued the appeal for admission requested that the mater be stood over by one day to enable him to take instructions for withdrawal of the appeal. Today, when the matter is called out, Mr. Menon appears for the appellants and seeks to make further * 4 * A.O. 1188.2010 1.4.2011 submissions. Mr. Menon contends across the bar that there has infact been a transaction of gift in favour of the appellants in respect of the suit property. He submits that the father of respondent no.2 had gifted the property to all the appellants and respondent no.2 together. Therefore, the appellants have a right in the suit property alongwith respondent no.2. This submission is required to be rejected for two reasons, firstly, that there are no pleadings to that effect in the plaint. Secondly, that the claim of oral gift by the appellants, has to be established by the appellants at the appropriate time. Therefore, the appeal is dismissed. 7. Mr. Menon, makes a request for continuation of the ad-interim order in the appeal directing the parties to maintain status-quo. The application is rejected. With the dismissal of the appeal, the interim order of status-quo stands vacated. 8. In view of dismissal of the appeal from order, Civil Application No. 1467 of 2010 does not survive. The same is accordingly disposed off. [SMT. R.P. SONDURBALDOTA, J]