ao31.11 -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD APPEAL FROM ORDER NO. 31 OF 2011 WITH CIVIL APPLICATION NO. 5280 OF 2011 1 Rakhma Kondaji Pardhi, Age 40 years, Occ. Farmer, 2 Navnath Kondaji Pardhi, Age 37 years, Occ. Farmer, Both R/o. Jambut (Kd), Tq. Sangamner, Dist. Ahmednagar ...Appellants Versus 1 Dhondiba Laxman Parhi, Age 67 years, Occ. Farmer, 2 Parubai Dhondiba Pardhi, Age 57 years, Occ. Farmer, ...Respondents (R. Nos. 3 to 7 are deleted as per courts order dated 23.2.2011) ..... Mr. Vinod Y. Bhide, advocate for the appellant Mr. R.L. Kute, advocate for respondent Nos.1 and 2 ..... CORAM: R.M. BORDE, J. DATED: 2ND MAY, 2011 JUDGMENT:- 1 Heard. 2 Admit. ao31.11 -2- 3 With consent of the parties appeal is taken up for final disposal at admission stage. 4 The appellants, original defendant Nos. 1 and 2 are raising exception to the order passed by the learned Civil Judge, Senior Division, Sangamner dated 23.11.2010, below Exh.5 in Special Civil Suit 85 of 2008. The respondents herein, (referred to as the plaintiffs) instituted a suit claiming partition and separate possession of the ancestral property. The plaintiff No.1 is uncle of defendant Nos. 1 and 2 whereas the plaintiff No.2 is the wife of plaintiff No.1. It is the contention of the plaintiffs that the property described in para 1 of the plaint is the ancestral property belonging to the joint family comprising of plaintiffs and the defendants. It is not necessary to go into the factual details of the matter. However, suffice it to note that in their application, the plaintiffs contended that they are in possession of the property bearing Gat No. 90/1 ad 90/2 and that the defendants shall be restrained from causing interference in their possession and they shall also be restrained from creating third party interest in relation to those property. The defendants have controverted the contentions raised by the plaintiffs and contended that the plaintiffs are not in possession of the property described in para 1-A of the plaint and in fact those properties are in possession of the defendants. ao31.11 -3- 5 On perusal of the contentions raised in the plaint, it clearly recorded in para 1-A of the plaint, which relates to description of property bearing Gat No. 90/1 and 90/2, that the plaintiffs claim undivided ½ share in those properties. If the payer E contained in the plaint is perused, it would reveal that the plaintiffs are claiming partition and recovery of possession of their ½ share in respect of the property described in para 1-A and 1-B of the plaint. There are no recitals in the plaint recording that the plaintiffs are in possession of Gat No. 90/1 and 90/2. On the contrary, 7x12 extract and other documentary evidence show that the entries in the name of the defendants in relation to property described in plaint para 1-A. 6 In view of this position, it was error on the part of the trail court to grant restraint order against the defendant Nos. 1 and 2 restraining them from interfering in the plaintiffs alleged possession in respect of land Gat No. 90/1 admeasurig 80 Are. The order passed by the trial court in that regard needs to be quashed and set aside. In so far as the order restraining the defendants from alienating the property mentioned in para 1-A is concerned, the same shall have to be maintained. The defendants are not expected to create third party interest. ao31.11 -4- 7 For the reasons recorded above, the appeal is partly allowed. The order passed by the trail court in respect of clamping restraint order on defendant Nos. 1 and 2 or their agents or anybody claiming through them from interfering in possession of 80 Are land out of field Gat No.90/1 is quashed and set aside. The order in respect of grant of injunction restraining the defendants from alienating the property mentioned in para 1-A is concerned, the said direction contained in the order passed by the trial court is maintained. 8 Considering the facts and circumstances of the case, the trial court shall make endeavour to decide the suit as expeditiously as possible and preferably by the end of year 2011. 9 In the facts and circumstances of the case, there shall be no order as to costs. 10 In view of disposal of Appeal From Order, pending civil application No. 5280 of 2011 does not survive and stands disposed of. *****