1 APP 297 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.297 OF 2010 IN NOTICE OF MOTION NO.3375 OF 2008 IN SUIT NO.2831 OF 2008 Javahir Tricumdas Kapadia and Ors. ..... Appellants V/s. Samir Harshkumar Kapadia and Ors. ..... Respondents Mr.S.U.Kamdar, Senior Advocate a/w Mr.Rajesh Kachare i/by Mr.Amit S. Potnis, for the appellants. Mr.Arif Bookwala, Senior Advocate a/w Astad Randeria i/by M/s.Madekar & Co., for the respondents. CORAM :P.B.MAJMUDAR & ANOOP V. MOHTA, JJ. DATE : 14TH SEPTEMBER, 2010 P.C. 1. With the consent of both the sides, now the above appeal is taken up for final disposal today itself. 2. This appeal is filed against the order passed by the learned Single Judge dated 06-04-2010 passed in the Notice of Motion No.3375 of 2008. The suit is in connection with the partition of the joint family properties. There are three properties involved in the suit viz (1) Nepeansea Road Bunglow (2) Ghatkopar property and (3) Lonavala property. The learned Single Judge restrained the defendants from parting with the possession regarding the Nepeansea Bunglow. In the 2 APP 297 of 2010 impugned order, the learned Single Judge also permitted the offer of the defendant to the tune of Rs.8 crores in connection with the Lonavala Bunglow and has also observed that the parties may consider to sale the said property on the basis of the highest offer received. In respect of the property situated at Ghatkopar, it is ordered that the parties may however with the consent, develop the said property, as like Lonavala property. 3. The original defendants have preferred this appeal on the ground that so far as Nepeansea Bunglow is concerned, the plaintiffs also ought to have been restrained from sell, transfer, alienate or create third party rights in the said property, as in the partition suit, both the parties are in the same position. Mr.Bookwala, learned Senior Advocate for the respondents, fairly states that appropriate orders may be passed in this behalf. 4. We accordingly direct that during the pendency of the suit, plaintiffs and defendants are restrained from creating third party rights in any manner so far as Nepeansea Bunglow is concerned. So far as property situated at Lonavala is concerned, similar injunction shall also operate between the parties. However, if both the parties are mutually agreed to sell the property situated at Lonavala, by getting the better offer, appropriate notice of motion can be moved before the learned Single Judge in such eventuality. The learned counsel for the appellant however, 3 APP 297 of 2010 submitted that the notice of motion is already filed before the learned Single Judge regarding the Lonavala property. The learned Single Judge may consider the said prayer subject to the observations made hereinabove. It is also clarified that the observations made in the impugned order regarding the preliminary decree, may be treated as tentative in nature and it will be open to the parties to apply for preliminary decree. 5. In view of what is stated above, the appeal is disposed of. 6. It is clarified that though there is no separate appeal filed against the Lonavala Property, but since this being the proceedings arising out of partition suit, the aforesaid order regarding Lonavala property is also passed. ( ANOOP V. MOHTA, J. ) ( P.B.MAJMUDAR, J. )