SM 1 11.ao.549.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 549 OF 2011 Mayur Navinchandra Shah ....Appellant Versus Biren Navinchandra Shah ....Respondent ____________ Mr. Jokhin Rais i/b Y. R. Shah for the Appellant. Mr. P. G. Lad for the Respondent. CORAM: R. M. BORDE, J. DATED : SEPTEMBER 13, 2011. P.C.: It is not disputed that the suit flat has been purchased in the joint name of the parties to this suit and their mother and accordingly, share certificate has been issued by the society concerned. The plaintiff and the defendant are the real brothers. Their mother died leaving behind her, the plaintiff and the defendant as the legal heirs and she has nominated the plaintiff and defendant in the society records in respect of suit flat and necessary intimation has been given to the society for effecting changes in the record, in connection with the suit flat. It is, also, not disputed that although the suit flat is jointly owned by both the parties being co-owners and there has been no division/demarcation of the suit flat, the plaintiff and the defendant are in exclusive use, occupation and possession of the suit flat. Some differences arose between the brothers inter-se and therefore, allegations in respect of causing interference in possession of plaintiff by defendant are made in the suit as well a application seeking interim relief. The application seeking interim SM 2 11.ao.549.11 injunction was tendered in a pending suit to the Trial Court, which is registered as a Notice of Motion No. 2245 of 2010, restraining defendant from disturbing possession of the plaintiff in respect of the suit flat. The aforesaid application has been turned down by the Trial Court after hearing the rival parties. 2. Since the property i.e the suit flat belongs to both the brothers, they being the co-owners of the property are entitled to use and occupation of the suit flat. The only order of injunction or restraint that can be passed against in the matter of such nature is restraining from ouster of each other out of possession of the property. Both the plaintiff as well as defendant shall not oust each other out of the possession of the property and both are entitled for use and occupation of the property jointly. The order passed by the Trial Court, therefore, stands set aside and in its place, it is directed to both the parties i.e., the plaintiff and the defendant shall not oust each other out of joint possession of disputed flat until the disposal of the suit. 3. The City Civil Court is directed to dispose of the pending suit expeditiously. The Appeal from Order is disposed of accordingly. (R. M. BORDE, J.)