1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 811 OF 2010 (Fulanbai Dasaram Lanjewar & Ors. vs. Husendra Motiram Bawankar) 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 15, 2010. Heard Shri Gode, learned counsel for the petitioners and Shri Choudhari, learned counsel for the respondent. The petitioners – defendants have challenged the judgment dated 28.10.2009 delivered by Ad-hoc District Judge – 1, Gondia, in MCA No. 48 of 2007. The contention is, the appellate Court has without recording proper reasons enlarged the temporary injunction passed by the trial Court and extended it to Gat No. 1114/1, though the petitioner is co-owner in it along with the respondent – plaintiff. Shri Gode, learned counsel has invited attention to consideration of this aspect by the trial Court to point out that after due application of mind, the trial Court has granted injunction only in relation to Gat No. 1114/3 and rejected temporary injunction in relation to Gat No. 1114/1. He relies upon 7/12 extracts to show that name of the petitioners as also respondent are mentioned therein. 2 Shri Choudhari, learned counsel, on the other hand, states that there was partition in the family and thereafter Gat No. 1114/1 was sub-divided and portion which fell to share of ancestors of present petitioners has already been disposed of by them. He states that the present portion has fallen to the share of respondent – plaintiff only. He also invites attention to 7/12 extract particularly remarks appearing in miscellaneous column to show that name of the mother of the respondent is recorded as person in cultivating position. He, therefore, states that the view taken by lower appellate Court is just and proper and does not call for any interference. The petitioners – defendants and respondent – plaintiff are relying upon same 7/12 extract which is for the year 2006-07. In one document, xerox copy produced before this Court, name of the mother Laxmibai of the petitioner as person in cultivating position is mentioned. In a document pertaining to the same, in relation to same Gat number, filed by present respondent, names of petitioners and respondent are appearing as owners along with name of Laxmibai. The contention of present respondent that after partition the petitioners have disposed of their portion and is not trying to stake claim to the portion which is fallen to the share of respondent, cannot be gone into by lower appellate Court. Thus, the documents produced as also the stand in relation to those documents and the story of present respondent is 3 not fully appreciated by lower appellate Court. In view of this position, it will not be appropriate on the part of this Court to consider the contention of Shri Choudhari, learned counsel, about disposal of portion by present petitioners. The appellate Court has to consider that controversy and to record appropriate finding. Only for that purpose, the judgment dated 28.10.2009 in Misc. Civil Appeal No. 48 of 2007 is quashed and set aside and the matter is restored back to the file of lower appellate Court. The lower appellate Court shall attempt to decide MCA as early as possible and in any case by 31st July 2010. The parties shall appear before the lower appellate Court on 30th April 2010 and shall abide by its further directions in the matter. Writ Petition is accordingly allowed. However, there shall be no order as to costs. JUDGE *GS.