1 848.11-ao IN THE HIGH COURT OF JUDICATURE AT BOMBAY. APPELLATE JURISDICTION. APPEAL FROM ORDER NO. 848 OF 2011 Shri Mahaveer Bansilal Kasaliwal and others. ... Appellants. V/s. Smt.Vanmala Sureshkumar Kasaliwal and others. ... Respondents. V.R.Dhond, Senior Advocate with H.B.Takke i/b. Milind More for the appellants. Sandeep K. Shinde i/b. Sagar Kasar for respondent No.4. CORAM: R.M.BORDE, J. DATED : 29th September 2011. P.C. : Heard. With the consent of parties, appeal is taken up for hearing and final disposal at the admission stage. 2. The appellant/ original plaintiff is taking exception to the order passed by the Civil Judge, Senior Division, Malegaon below Exh.6 in Special Civil Suit No.75/2010. The plaintiff instituted a suit claiming partition and separate possession of the ancestral property. It is the contention of the plaintiff that partition was not effected and, as such, plaintiffs are entitled to have share in the ancestral property which is required to be carved out and the plaintiffs are required to be 2 848.11-ao put in possession of their share. In the suit, an application at Exh.6 came to be tendered by the plaintiffs seeking restraint order against the defendants restraining them from alienating the ancestral property during the pendency and disposal of the suit. The defendants have opposed the application mainly on the ground that there was a previous partition of the ancestral property and the parties to the litigation are in possession of their respective shares in the ancestral property. It is, therefore, contended that the instant suit claiming partition and separate possession is not entertainable. 3. The learned trial Judge while considering the application has recorded a finding that no reliance can be placed on the revenue record tendered by the defendants to substantiate their contentions. Learned Judge has also recorded finding in the order that he cannot comment as to whether there was previous partition of the ancestral property or not and the issue is required to be dealt with at the time of final hearing of the suit. 4. On perusal of the order passed by the trial Court, it appears that the trial Court has not given any specific finding as to whether there was a previous partition or not. The trial Judge while dealing with such application has to accept the case of the either of the parties and pass an appropriate order either granting or refusing to grant injunction. Merely because the trial Judge is not in a position to arrive at any conclusion he cannot reject the contention. The reasons recorded by the trial Court are quite unsatisfactory and the matter has been dealt with in most unsatisfactory manner. The basic principles governing grant of injunction have not been followed by the learned 3 848.11-ao trial Judge. Both parties agree that the reasons recorded by the trial Court in support of the order are not satisfactory. In this view of the matter, ends of justice would be met if the order impugned in this appeal is quashed and set aside and the matter is remitted back to the trial Court for reconsideration of application (Exh.6). It would also be desirable that, without attaching any stigma to the learned Presiding Officer who turned down this application, the learned Principal District Judge shall assign the matter to some other judicial officer. 5. In view of the above, impugned order is quashed and set aside. The matter is remitted back to the trial Court for consideration afresh. The learned trial Judge shall decide the application at Exh.6 afresh after extending opportunity of hearing to all the parties concerned as expeditiously as possible, preferably, within four weeks from today. It would be open for the parties to tender additional documents, if any, on record in support of their case. 6. Appeal from order stands disposed of in terms of this order with no order as to costs. In view of disposal of appeal from order, pending civil application does not survive and stands disposed of accordingly. (R.M.BORDE, J.)