1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.5868 OF 2009 Kamlakar Pandurang Ghuge. .. Petitioner Vs Bapu Jagannath Deshmukh & Ors. .. Respondents -- Shri Machindra Deshmukh for the Petitioner. Shri Umesh Mankapure for Respondent Nos.1, 2A and 2B. -- CORAM :A.S.OKA,J. DATE : 22ND JANUARY, 2010 P.C. . The Petitioner-the original Defendant No.5 has taken an exception to an order of the Appellate Court by which temporary injunction has been granted restraining the Petitioner from obstructing joint possession of the Plaintiffs over the suit field. 2. The learned counsel appearing for the Petitioner submitted that before the Petitioner acquired the share of the first Defendant by a Sale Deed dated 3rd December, 2007, the shares of the parties were already separated and all the parties including the first Defendant were were enjoying their respective saparate shares. He submitted that the first Defendant was in a separate enjoyment of 5 annas and 4 paise share in the larger property which has been purchased by the Petitioner. He submitted that the suit was essentially filed for enforcing a preferential right under the Hindu 2 Succession Act, 1956 and the suit is not maintainable. He submitted that the plaint proceeds on the footing that the Plaintiffs are not in possession. He submitted that the trial Court declined to grant temporary injunction, and for the first time, the Appellate Court granted injunction though there was overwhilming evidence on record to show the possession of the Petitioner. He submitted the parties were all along were enjoying their respective shares separately. There was no question of granting any injunction against the Petitioner by the Appellate Court especially when in the plaint, there is an admission that the Plaintiffs were not in possession. He submitted that the impugned order is perverse. 3. I have carefully considered the submissions. Perusal of the plaint prima facie shows that there is no admission by the Plaintiffs that they are not in possession. On the contrary, in Paragraphg 2 of the plaint, there is a specific averment that the Plaintiffs and the first to fourth Defendants were in possession of the suit property and they were jointly cultivating the same. In Prayer (b), there is a specific prayer that the Defendant No.5 be restraining from obstructing the posession of the Plaintiffs. In Paragraph 3 of the plaint, there is a specific averment that the Petitioner/Defendant No.5 has not been placed in possession of the property referred to in the Sale Deed 3 dated 3rd December, 2007. 4. Perusal of the Sale Deed on which the reliance is placed by the Petitioner shows that there is no recital saying that the first Defendant was in possessionn of a separate share. Prima facie, it appears that in the Sale Deed, there is a reference to an undivided share of the first Defendant. At this stage, it is not possible to say that the 1st Defendant was in possession of a separate share. 5. Moreover, a limited injunction has been granted by the Appellate Court for protecting the joint possession of the Plaintiffs. The said injunction has been granted as it was found that there was no prima facie evidence of partition effected between the parties. 6. In this Petition under Article 227 of the Constitution of India, no intereference can be made with a limited order of temporary injunction granted by the Appellate Court. No interference can be made at the instance of the Petitioner who is admittedly a stranger to the family of the Plaintiffs and who had purchased a share from one of the members of the family. 7. No case for interference is made out in writ jurisdiction under Article 227 of the Constitution of 4 India. It is, however, made clear that the observations made by the Appellate Court as well as by this Court are prima facie and tentative observations. All contentions of the parties in the main suit are kept open. The suit will be decided without being influenced by the said tentative observations. Hearing of the suit is expedited. The suit shall be decided before the end of the year 2010. JUDGE ash