1 24 wp 6623.10.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION srk WRIT PETITION NO.6623 OF 2010 Manohar Shankar Naik ..Petitioner. v/s. Malubai Maruti Naik & Ors. ..Respondents. .... Mr. Umesh R Mankapure for the Petitioner. CORAM : J.H.BHATIA, J. DATE : 31ST AUGUST, 2010. P.C. 1 Heard the learned counsel for Petitioner. 2 The Respondent No.3 is uncle i.e. step brother of father of the Petitioner. According to the Petitioner, he and the Respondent no.3 hold some joint family property and suit property, which is a house, is also joint family property. The Respondent no.3 allegedly sold the suit property to the Respondent nos.1 and 2 and they began construction of a house on the suit property. In view of this, Petitioner filed Regular Civil Suit No.61 of 2010 for declaration and perpetual injunction. He also filed an Application Exhibit 5 for 2 24 wp 6623.10.doc temporary injunction restraining the Respondent from making any construction. According to the Respondent no.3 partition had already taken place and the suit property has come to his share and the Petitioner has no right, title or interest in that property. The trial court granted temporary injunction in favour of the Plaintiff/Petitioner. That order was challenged by the Respondent No.1 and 2 in Miscellaneous Civil Appeal no.21 of 2010. The Appeal was allowed. The Appellate Court came to conclusion that prima facie there was reason to believe that partition has taken place. Besides that the Appellant Court has also noted that in view of the commissioner’s report, the construction of the house was almost completed and the Defendants had filed an undertaking Exhibit 19 to the effect that they will pull down the structure in the event of decree being passed in favour of the Plaintiff. The Appellant court found that in view of the circumstances the temporary injunction could not be granted and in the result, the order passed by the trial court was set aside. The original Plaintiff has filed the present Petition challenging that order. 3 After perusal of the orders of both the courts below, it appears that the findings of both the courts below, in favour of and 3 24 wp 6623.10.doc against the partition are only prima facie. The finding on this issue can be given only after the trial of the suit. Assuming that partition has not taken place and the Plaintiff/Petitioner is one of the joint owners of the property and has share in the same, it is clear from the record that the Respondent nos. 1 and 2 have almost completed construction of the house. That construction cannot be directed to be demolished at this stage. They have filed undertaking to pull down the structure in case the decree is passed in favour of the Plaintiff. That is sufficient security in favour of the Plaintiff. Therefore, I do not see any illegality or irregularity in the impugned order passed by the first Appellant court. 4 In the result, Writ Petition stands dismissed. All the contentions of all the parties are left open to be decided by the trial court. [ J.H.BHATIA, J. ]