1 5 ao 364.10.doc srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 364 OF 2010 WITH CIVIL APPLICATION NO. 485 OF 2010 Smt. Bimladevi Omprakash Agarwal ....Appellant Versus Atam Prakash Aggarwal ...Respondent Mr. Gautam Patil a/w Mr.Ruchir Tolat i/b L.C.Tolat & Co. for the Appellant. Mr. Shailesh Shah a/w Ms. Manisha Menon i/b Mr. Munir Merchant for the Respondent. CORAM : R.C. CHAVAN, J. DATED : 2ND AUGUST, 2010. P.C.: 1 This Appeal is directed against the order passed by the Civil Judge Senior Division, Thane whereby the learned Judge restrained the Appellant Original Defendant in Special Civil Suit No. 24 of 2010 from transferring, alienating, encumbering, dealing with or disposing off the disputed 37,932.44 square feet of FSI to any person or creating third party interest in any manner until further orders. 2 I have heard the learned counsel for the parties at more than adequate length. 2 5 ao 364.10.doc 3 The Plaintiff came with the case that since some land had to be surrendered to the Government from the properties of the family, 75% of the Plaintiffs lands were surrendered to the Government. In view of this surrender, the family agreed on 22nd December, 1988 that the Plaintiffs was to have 39,830.09 square meters of FSI equivalent to 4,28,731.09 square feet. Accordingly from time to time the Plaintiff and his father, who was then alive, sold the FSI to various parties jointly in their respective shares. After father’s demise in terms father’s will a probate was taken out. Father’s share has come to the Appellant’s (original Defendant’s) share. The Respondent filed a suit for a declaration that the Plaintiff has right and interest and is entitled to the suit property jointly to the extent of his share. He also sought permanent injunction restraining the Defendants from alienating, encumbering, dealing with the property. Pending decision of the suit, he sought similar injunction particularly in respect of the balance of FSI. He filed an Application Exhibit 5 for such a temporary injunction. 4 The Appellant - Defendant resisted and prayed that the Appellant was entitled to 44,501 square feet which was modified to 37,932.44 square feet of FSI. After hearing the parties the learned trial Judge restrained the Appellant - Defendant from dealing with the disputed 37,932.44 square feet of FSI. 3 5 ao 364.10.doc 5 The learned counsel for the Appellant rightly submitted that the dispute about this 37,932.44 square feet was raised by the Appellant- Defendant. This was not disputed portion of the FSI according to the Plaintiff. He pointed out that the Plaintiff has claimed only 60% share in these 37932.44 square feet which would come to 22,797.4 square feet. He pointed out that the Respondent has filed an affidavit before this Court where also the Respondent has categorically stated that the Appellant- Defendant would be entitled to 15,135.04 square feet. Therefore, as far this portion is concerned there is no dispute between the parties. Therefore, the learned Judge should not held that entire 37,932.44 square feet of FSI was in dispute. He submitted that since on Respondents-Plaintiff’s own reckoning the Appellant was entitled to 15,135.04 square feet area of FSI, injunction could not have been issued in respect of this part. 6 The learned counsel for the Respondent submitted that all along the parties had been dealing with the FSI together. He submitted that if the injunction was to be restricted only 22,797.40 square feet, the Respondent would eventually been left with no remedy and no opportunity of selling this FSI if the Appellant disposes of 15,135.04 square feet area of FSI, on the basis of which building may come up with a plans which may have plinth accordingly modelled. He submitted that it will not be possible for the Respondent then to sell the remaining 22,797.40 square feet of FSI and 4 5 ao 364.10.doc therefore, the sale has to be done jointly and therefore, an injunction in respect of the entire 37,932.44 FSI is necessary. 7 When the Plaintiff himself had stated that 15,135.04 square feet came to the share of the Appellant, there was no question of seeking injunction in respect of that portion whatever may be the difficulties in respect of the remaining portion. It is not that injunction is granted at the instance of the Appellant. The Respondent filed the suit and prayed for temporary injunction. Therefore, Respondent has to show that prima facie he is entitled to 37,932.44 square feet of FSI in order to claim an injunction in respect of this entire share. When on his own admission he is entitled to only 60% of this and since there can be sales of undivided shares in FSI or for that matter any property, whatever may be the difficulties that the Respondent may experience, he could not have sought to restrain the Appellant in respect of share which undisputedly and even according to the Respondent belongs to the Appellant. In view of this, the impugned order has to be modified and the injunction would have to be restricted to 22,797.40 square feet of FSI. The Appeal from Order is therefore, partly allowed. The injunction is modified accordingly. 8 The learned counsel for the Respondent prays for stay of the operation of the order for four weeks though the learned counsel for the 5 5 ao 364.10.doc Appellant opposes. The order shall not be given effect for a period of four weeks. 9 The learned trial Judge may expeditiously hear the suit. (R.C. CHAVAN, J.)