1 wp 9559.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 9559 OF 2011 Govind Narayanrao Kulkarni .. Petitioner Versus Dwarkabai Narayanrao Kulkarni .. Respondent Shri S. K. Kulkarni, Advocate for the Petitioner. Shri C. R. Deshpande, Advocate for the Respondent. CORAM : S. V. GANGAPURWALA, J. DATE : 12TH DECEMBER, 2011. PER COURT : . The present respondent has filed a suit for possession. The present respondent also filed an application for temporary injunction restraining the present petitioner from alienating, transferring the property during the pendency of the suit. The Trial Court allowed the application. Aggrieved thereby the defendant preferred an appeal before the District Court. The District Court also dismissed the appeal. The defendant has assailed the said order in the present writ petition. 2 wp 9559.11 2. Shri Kulkarni, the learned counsel for the petitioner submits that note in the partition deed dated 17.05.1983 is superfluous. The same was not acted upon and as such, the said deed cannot come in the way of the right of the petitioner. The learned counsel further submits that other brothers have sold their share to the petitioner and after the petitioner has purchased their shares the present suit came to be filed. The learned counsel further contends that even Sec. 52 of the Transfer of Properties Act takes care of the alleged rights. The learned counsel relies on the judgment of the learned Single Judge of this Court in a case of Kachhi Properties Vs. Ganpatrao Shankarrao Kadam and others reported in 2010 (5) Bom. C. R. 43. The learned counsel submits that the plaintiff has absolutely no case, muchless a prima facie case. When the plaintiff does not have prima facie case the rights of the defendant cannot be restricted by prohibitory order. 3. Shri Deshpande, the learned counsel for the respondent supports the order. 4. With the assistance of learned counsel I have gone through the orders. The defendant/present petitioner had come with a 3 wp 9559.11 case that there was another partition in the year 1985. Said partition deed is not produced on record. Even the partition deed which is said to be relied upon contains a note. Whether the said note is superfluous or not would be decided at the time of final adjudication of the dispute. What is nature of said document also can be decided after the parties lead their evidence. There are triable issues involved in the matter. The defendant is the son of the plaintiff. It is not disputed that initially the property was owned by Narayanrao i. e. husband of the plaintiff and father of the defendant. The documents relied will have to be proved. The defendant came with a specific case that after the said partition of the year 1983, there was subsequent partition in the year 1985. The said document is not produced on record by the defendant either in the Trial Court or before the Appellate Court. I do not think any error is committed by the Court while passing the impugned order. 5. Section 52 of the Transfer of Properties Act may not safeguard all the eventualities as has been held by this Court in a case of Pralhad Jaganath Jawale Vs. Sitabai Chander Nikam reported in 2011(4) Mh. L. J. 137. Even otherwise when there are triable issues in the suit, it would be in the fitness of 4 wp 9559.11 things to protect the subject matter of the lis. 6. The discretion has been exercised by the Court below in plausible manner. In view of that no case for interference is made out in the writ jurisdiction of this Court under Article 227 of the Constitution of India. The writ petition is dismissed, however, with no order as to costs. 7. Taking into account the relations between the parties, the Trial Court shall decide the suit as expeditiously as possible and preferably within a period of nine (9) months from today. [ S. V. GANGAPURWALA, J. ] bsb/Dec. 11