1 108--sa.693.05 ndm FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION SECOND APPEAL NO. 693 OF 2005 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders Court’s or Judge’s orders Mr. P.N.Joshi for the Appellants. CORAM : A.S.OKA, J. DATE : 15 th November, 2011. P.C. . Heard the learned counsel appearing for the Appellants, who are the original Defendant Nos.8 and 9. 2 The learned counsel appearing for the Appellants submitted that the Appellate Court has committed an error while setting aside the alienation made in favour of the Appellants inasmuch as there was evidence on record to show that the alienation was for legal necessity. He submitted that the suit for partition filed by the Plaintiff during the lifetime of her husband was not maintainable and therefore, the Appellate Court could not have allotted the shares to the Plaintiff. 2 108--sa.693.05 3 The categorical finding of both the Courts and in particular, the finding of the Appellate Court is that the alienation in favour of the Appellants has taken place during the pendency of the suit and the alienation has taken place after the order of injunction was passed against the Defendant No.1 restraining him from creating third-party rights in respect of the suit property. Thus, the categorical finding is that the alienation was made by the Defendant No.1 in favour of the present Appellants in breach of the order of temporary injunction. It is not possible to disturb the said finding recorded by the Courts below based on material on record. Once it is held that Defendant No. 1 has transfered the suit property in favour of the Appellants in breach of the order of temporary injunction, on the basis of the said alienation which is totally illegal, the Appellants cannot claim any right. Therefore, there is no merit in the second appeal at the instance of the Appellants. 4 There is no merit in the appeal and the same is dismissed. 3 108--sa.693.05 5 This order will not preclude the Appellants from raising a contention that at the time of partition, the property sold to the Appellants be allotted to the share of the party from whom the Appellants have taken the same. [ A.S.OKA, J ]