1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7331 OF 2008 Khatunbi Essak Agga .. Petitioner versus Salim Isaq Agga .. Respondent Mr.P.B.Shah for the petitioner. Mr.G.M.Ashfaq for the respondent. CORAM : A.S.OKA, J. DATE : 5th October 2009. P.C: . Heard learned counsel appearing for the petitioner. The petitioner is the 1st defendant in a suit filed by the respondent. The suit is for partition and separate possession. The suit relates to three properties viz City Survey No. 1A-1 admeasuring 45.9 sq.mtrs, City Survey No.1A-2 admeasuring 112 sq.mtrs and City Survey No.1A admeasuring 65 sq.mtrs. The Application for temporary injunction made by the respondent was rejected by the trial Court by order dated 8th February 2008. In an appeal preferred by the respondent- plaintiff, the Appellate Court has interfered and has restrained the petitioner from alienating the suit property till the disposal of the suit. 2. The learned counsel appearing for the petitioner submitted that the petitioner is claiming ownership on the basis of gift dated 25th August 1992 and the respondent has not challenged the said gift in the suit. He submitted 2 that Appellate Court was informed that the petitioner has sold the suit property by registered conveyance on 11th February 2008. He submitted that notwithstanding this aspect the Appellate Court has granted temporary injunction. He submitted that the issue of balance of convenience has not been considered and decided by the Appellate Court. He stated that as a result of the injunction, the petitioner is not receiving the full consideration. He states that the Sale Deed shows that the possession has been already handed over to the purchasers and the purchasers are not made parties to the suit. 3. I have carefully considered the submissions. The averments made in the plaint and in particular paragraphs 4 and 5 show that there is a challenge to the gift on the basis of which the petitioner is claiming. The substantive prayer in the suit is for partition and separate possession. The learned counsel appearing for the petitioner has produced for perusal of this Court a xerox copy of the Sale Deed dated 11th February 2008. Prima facie it appears that the Sale Deed relates to first two properties in paragraph 1 of the plaint and it does not relate to the third property in the said paragraph. The learned counsel appearing for the petitioner submitted that all three properties have been sold. However, this issue will have to be gone into in as much as prima facie the Sale Deed does not specifically refer to the three properties. 4. In a substantive suit filed by the respondent, after the application for 3 injunction was rejected, the petitioner has alienated atleast two out of three suit properties. After noticing this, the Appellate Court has passed a discretionary order restraining the petitioner from alienating the suit property till the final disposal of the suit. The said order cannot be interfered with in writ jurisdiction under Article 227 of the Constitution of India especially when the petitioner has purported to deal with two suit properties out of the three during pendency of a substantive suit for partition and separate possession. 5. No case for interference is made out. The writ petition is rejected. (A.S.OKA,J)