KBP 6327-08.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6327 OF 2008 Sadashiv Makhaji Adsule and anr. ..Petitioners Vs. Smt.Shahabai Laxman Gaikwad and ors. ..Respondents ......... Mr.A.M.Kulkarni, for petitioners. Mr.U.R.Mankapure, for respondent Nos. 1 to 3. ......... CORAM : A.S.OKA, J.. DATE : 27 th August, 2009. P.C. : 1] Heard learned counsel for the petitioners. The petitioners are the original plaintiffs who filed a suit simplicitor for injunction restraining respondents from interfering with their possession over the suit property. According to the case of petitioners, one Makhaji was holding suit property who died on 7 th November, 1976. The first petitioner is one of the sons of Makhaji. The second petitioner is grandson of Makhaji (son of Baburao). The first respondent is a daughter of Makhaji and second to fourth respondents are the children of another daughter of Makhaji by the name Tanubai. It is contended that said Makhaji executed a registered will dated 24 th January, 1975 thereby bequeathing the suit properties in favour of first petitioner and father of second petitioner. It is contended that after demise of Makhaji, the provisions of Urban Land (Ceiling and Regulation) Act, 1976 came into force. According to the case of the petitioners, to avoid the applicability of the said Act, the parties were advised to execute a deed of KBP 6327-08.sxw 2 partition. It is contended that the petitioners are in exclusive possession and the respondents have no right, title and interest in the suit property. A reply was filed by the respondents contending that there is no valid will executed by Makhaji. A reliance is placed on registered deed of partition dated 4 th June, 1981 to which the first petitioner Baburao and first respondent (sister of first respondent) are the parties. It is contended that the property of Makhaji was distributed as per the said deed of partition. 2] The trial court while rejecting the application for injunction relied upon the partition of the year 1981. While dismissing the appeal preferred by the petitioners, the learned District Judge observed that, according to the case of the petitioners, names of sisters of first petitioner were entered into in the revenue record to save the suit property from the clutches of the provisions of the said Act of 1976. In view of the said contention, the appellate court observed that the petitioners are disentitled to any equitable relief. 3] The learned counsel appearing for the petitioners submitted that both the courts below have not considered the case made out by the petitioners that they were in possession of the suit property. He submitted that the case of the petitioners regarding possession ought to have been considered on the basis of documentary evidence on record. He submitted that as documentary evidence has not been considered and no findings have been recorded as regards the possession, the impugned order is perverse. 4] I have considered the submissions. Perusal of the impugned order and in particular the order of the appellate court shows that the registered deed of partition, to which the first petitioner and father of second petitioner are the parties, has been considered by the courts below. Apart from this, the appellate court observed that from the year 1976, the suit land is standing in the name of first respondent and her sister in the revenue records. Therefore, there is no merit in the submission that the factum of possession KBP 6327-08.sxw 3 has not been considered by the courts below. Apart from that the petitioners have asserted in the plaint that the deed of partition which is duly registered was executed only to save the properties from the clutches of the provisions of the said Act of 1976. 5] The grant of interim injunction is always a discretionary and equitable relief. Considering the aforesaid aspects, the courts below have declined to grant equitable and discretionary relief in favour of petitioners. Therefore, no case is made out for interference in this Writ Petition under Article 227 of the Constitution of India. Writ Petition is accordingly rejected. It is made clear that the trial court shall decide the suit on its own merits without being influenced by the observations made in the impugned order and by the confirmation of the impugned orders by this Court. All contentions of the parties are expressly kept open ( A.S.OKA, J. )