1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.6466 OF 2011. _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ CORAM : S.V.GANGAPURWALA,J. Date : 30.08.2011. 1. Heard. 2. The present Respondent No.1 had filed suit for perpetual injunction against the present petitioner and the Respondent Nos.2 to 4. After recording the evidence the trial Court decreed the suit and clamped injunction against the defendants. The present petitioner challenged the said judgment and decree by filing appeal before the District Court. The petitioner also filed an application Exh.6 for stay of the judgment and decree passed by the trial Court. The District Court rejected the said application. Aggrieved thereby, the present Writ Petition is filed. 2 3. Mr.Kudale, learned counsel for the petitioner submits that for the first time the injunction was clamped after the decree was passed and on filing the appeal, the same was also stayed and the stay to the decree continued till the impugned judgment. The learned counsel contends that the property in question is an ancestral property and the possession of one is on behalf of the other co-sharers, no injunction can be clamped against the co-sharers. The learned counsel relies on the judgment of the Apex Court in a case of "Bondar and others Vs. Hem Singh (dead) by L.Rs. and others" reported in 2009 (5) ALL MR 433 (S.C.). The learned counsel further contends that the trial Court while deciding the suit did not frame the issue about the nature of the suit property. The petitioner has also contributed for the purchase of the property as one of the property is purchased in the year 1991 and the petitioner joined service in 1987. The learned counsel further contends that the appellate Court will be required to reappreciate the whole evidence and then arrive 3 at the conclusion. Even according to the Respondent No.1 the petitioner contributed in the year 1995 and as such when the property was purchased even according to the plaintiff the petitioner was joint. 4. With the assistance of the learned counsel, I have gone through the judgment. The trial Court has held that the plaintiff is in lawful possession of the property and that the defendants Nos.1 and 2 have failed to prove that they have contributed money for purchasing disputed lands. Nucleus is also not shown. No doubt, the said finding will require reappreciation at the hands of the appellate Court at the time of disposal of the appeal but at this stage the findings of the trial Court prima facie do not appear to be perverse or without record. The lower appellate Court has considered this aspect while rejecting the said application. 5. In light of the above, there is no error of jurisdiction on the part of the lower appellate Court while rejecting the application. The observations made are only prima facie in nature 4 and the appellate Court shall decide the appeal dehors the observations made at this stage. (S.V.GANGAPURWALA,J.) Dt.30.08.2011. asp/office/wp6466.11