1 ao125.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO. 125 OF 2011 WITH CIVIL APPLICATION NO. 9115 OF 2011 Rahim s/o Habibbhai Pirani, Age: 58 years, Occ: Business, R/o. Khoja Colony, Nanded. ...APPELLANT VERSUS Abdul Rasool s/o Habibbhai Pirani, Age: 52 years, Occ: Business, R/o. Khoja Colony, Nanded and others. ...RESPONDENTS ... Mr. M.V. Ghatge, Advocate for appellant. Mr. P.M. Shah, Senior Counsel i/b Mr. Aniket Bhakkad, Advocate for respondent No.1. ... CORAM : S.S. SHINDE, J. RESERVED ON : 11-08-2011 PRONOUNCED ON: 22-08-2011 COURT'S ORDER : This Appeal from Order is filed challenging the order dated 13-07-2011 passed by the Joint Civil Judge, Senior Division, Nanded below Exhibit-5 and 32 in Special Civil Suit No.20 2 ao125.11 of 2011. 2. The appellant herein is the original plaintiff and the respondents herein are the original defendant Nos. 1 to 4 in Special Civil Suit No. 20 of 2011. . The appellant i.e. original plaintiff and respondent No.1 herein, are real brothers. It is the case of the appellant that, they are only heirs of the property of their father Mr. Habibbhai as their mother has expired in the year 2003 and their sisters have relinquished their claim during the life time of their father. It is the case of the appellant that, after the death of Mr. Habibbhai, respondent No.1 forged will deed and thereby created revenue record in his favour. Respondent No.1 sold the suit property in favour of respondent No.2, who in turn, sold the suit property to respondent Nos. 3 and 4. 3. The appellant herein filed Special Civil 3 ao125.11 Suit NO. 20 of 2011 seeking declaration that the will deed be declared null and void and not binding on the plaintiff. Further the sale deed executed in favour of respondent Nos. 2,3 and 4 be declared null and void and not binding on the plaintiff's share and recovery of possession was sought to the extent of plaintiff's share. . On 07-05-2011 the order of status quo was passed by the trial Court in regard to the suit property till filing of say by the defendants. On 13-07-2011 the trial Court heard the application seeking temporary injunction and same came to be rejected, on the ground that the appellant herein has not proved his prima facie case, balance of convenience lies in favour of the defendants and they will suffer irreparable loss, if injunction is granted. Hence this Appeal from Order. 4. Learned Counsel appearing for the appellant submits that, the apprehension of the appellant is proved by sale of property by 4 ao125.11 respondent No.1 in favour of other respondents and hence to avoid multiplicity of litigation the injunction ought to have been granted. It is further submitted that, the will deed relied by the defendants is forged and bogus document. It is further submitted that, there are two will deeds on record and in view of suspicious circumstances the same cannot be relied upon and hence, the appellant has proved his prima facie case. It is further submitted that, defendant Rasool has also entered into compromise as partner in Naaz Talkies. It is further submitted that, the trial Court failed to consider the construction and or alienation of suit property will cause irreparable loss to the plaintiff. Therefore, learned Counsel appearing for the appellant would submit that, when there are two will deeds on record and in view of suspicious circumstances, the same cannot be relied upon and therefore, the appellant has proved his prima facie case, is not accepted by the trial Court and therefore, this Court may allow this Appeal from Order. 5 ao125.11 5. On the other hand, learned Senior Counsel appearing for respondent No.1 submitted that, the trial Court has considered all aspects of the matter including the contention of the appellant that, there are two will deeds on record and has taken a view that the appellant-plaintiff who himself has relied on the will deed in Arbitration Petition No. 108 of 2003 and entered into compromise, cannot say that he was not aware about the will deed. Learned Senior Counsel invited my attention to the findings recorded by the trial Court and submitted that, all aspects have been dealt with by the trial Court including balance of convenience, irreparable loss and also the contentions of the appellant that, there are two will deeds and after appreciating the evidence, the trial Court has rejected the applications Exhibit-5 and 32. Therefore, this Court may not interfere with the impugned order. Learned Senior Counsel appearing for respondent No.1 submitted that, without admitting but assuming that, there 6 ao125.11 are two will deeds of Habibbhai Pirani, in that case also, except only one line about bank amount worth Rs. 45,000/- is added in another will deed, all other contents of both the will deeds are one and the same. Therefore, according to learned Senior Counsel, the trial Court has taken a correct view in the matter and hence, this Court may not entertain this Appeal from Order. 6. I have given due consideration to the rival submissions, perused the grounds taken in the Appeal from Order, annexures thereto and documents placed on record by both the parties. I have carefully perused the findings recorded by the trial Court and in my opinion, the trial Court on the strength of evidence brought on record, has taken a correct view in the matter. The trial Court has dealt with the contention of the appellant that, there are two will deeds on record, and recorded the findings that even if this contention of the plaintiff is appreciated, in that case also, the will deed produced by 7 ao125.11 Advocate Mr. Ektate of Habibbhai on Bond Paper No.3605 in which only one line about bank amount worth Rs.45,000/- is added but in respect of the suit property and other contents, it appears to be one and the same. The trial Court has gone into details of all the aspects and has further observed that, whether the will deed is genuine or forged is a matter of evidence and at this stage no any definite conclusion can be reached about the same. The trial Court has considered the aspect of irreparable loss and recorded the finding that if such injunction is granted, it will cause irreparable loss to the defendants. In my opinion, the finding recorded by the trial Court is after proper appreciation of rival contentions and evidence brought on record. 7. I find considerable force in the argument of learned Senior Counsel appearing for respondent No.1 that the appellant himself has relied upon the said will deed in Arbitration Petition No. 108 of 2003. It also appears that the said Arbitration 8 ao125.11 Petition came to be disposed of as per terms and conditions of the compromise. The trial Court has also observed in Paragraph-18 that, the plaintiff has not approached the Court with clean hands and further observed that, the plaintiff has suppressed material facts. The plaintiff and his wife received the benefit of the will. The plaintiff has not taken any objection about mutation entry in the name of defendant No.1, which was effected on the basis of will. Said mutation entry is taken on 31-05-2004 and from 2004, the plaintiff has not taken objection to the said mutation which is in the name of defendant No.1. 8. Therefore, taking overall view of the matter, in my opinion, the view taken by the trial Court is inconsonance with the evidence brought on record. After all, granting relief of temporary injunction is a discretionary relief and the trial Court after appreciating the evidence brought on record, has rightly refused such discretionary 9 ao125.11 relief in favour of the plaintiff. No interference is warranted. Hence, the Appeal from Order is dismissed. Consequently, the Civil Application stands rejected. . The prayer of the appellant to expedite the hearing of the suit cannot be entertained since the suit itself is filed in 2011. However, it would be open for the trial Court to expedite the hearing of the suit, if it is otherwise convenient for the said Court. [S.S. SHINDE, J.] sut/AUG11