1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 1471 OF 2010 (Smt. Jyoti Vasantrao Pathak & Ors. vs. Prashant Atmaram Pimpalkar & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. APRIL 12, 2010. Heard Shri Deshpande, learned counsel for the petitioners and Shri Naik, learned counsel for the respondents. The petitioners – plaintiffs filed suit for permanent injunction to restrain the other alleged co- owners from alienating suit property. The trial Court granted temporary injunction and restrained the respondents from creating any third party interest on 04.07.2009. The respondents then challenged it in Misc. Civil Appeal No. 179 of 2009 and by judgment dated 12.03.2010, the Extra Joint District Judge – 3, Nagpur, allowed that appeal. Shri Deshpande, learned counsel for the petitioners has contended that the decree for partition has not been acted upon and there is no partition by metes and bounds. The parties are still in joint possession. The learned counsel for the respondents has stated that as per report of the Commissioner, the decree 2 for partition has been executed finally and parties are in separate possession. I have perused the report of the Commissioner dated 25.10.1988 in N.A.N.R.J.E. No. 223/83 and the Final Decree Proceedings in R.C.S. No. 445/1979. As per order dated 19.12.2001 passed below Exh. 1 in that suit, the proceedings are closed after noting that properties shown in Schedule “A” were already given in share of respective shareholders as per the exercise undertaken by the Court Commissioner. The report of Court Commissioner shows that total four shares were to be worked out and 1/4th share could only be separated and that 1/4th share was given to Vyankatesh and present respondents (original plaintiffs) are his descendants. The other 3/4th portion was found to be unseverable and, therefore, was ordered to be sold and the other three brothers were to distribute amongst themselves the sale proceeds thereof. The suit pertains to this other 3/4th portion. The appreciation of controversy by lower appellate Court cannot be said to be erroneous or perverse. The petitioners are claiming to be in possession of said 3/4th portion but that possession is not relevant in any way in present matter. No case is made out warranting any interference. Writ Petition is dismissed. No order as to costs. JUDGE 3 *GS.