1 wp1307.11 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 1307 OF 2011 Smt. Manisha Bapusaheb Tambe and another ..PETITIONERS -VERSUS- Manisha Ananda Patare @ Manisha Sunil Padale and others ..RESPONDENTS ..... Mr. S.S. Deshmukh, Advocate for petitioners. Mr. R.N. Dhorde with Mrs. M.D. Thube-Mhase, advocate for respondent no.1. ..... (CORAM : B.P. DHARMADHIKARI, J.) DATED : 21st March, 2011. PER COURT : 1. Heard Advocates Mr. Deshmukh for petitioners and Mr. Dhorde with Mrs. Thube-Mhase for respondent no.1-caveator. Matter is heard finally with consent. 2. Respondent no.1 has filed the suit for cancellation of sale deed executed in favour of the petitioners by her brothers. She contends that there was no partition between her brothers and herself and property remains joint and undivided. Her brothers obtained the colluded decree and on the strength of that decree executed the sale deed in favour of petitioners. 3. In that suit her prayer to protect her possession by grant of temporary injunction was rejected by trial Court. Respondent no.1 2 wp1307.11 then filed Misc. Civil Appeal. In Misc. Civil Appeal that order has been reversed and present petitioners are restrained from interfering with her possession. 4. Advocate Mr. Deshmukh for petitioners contends that being married sister, she was never in physical possession and constructive possession at this stage is not relevant. He further contends that Trial Court only because of subsequent amendment in Hindu Succession Act recorded finding against the petitioners and restrained the petitioners from interfering to the extent of her share until final adjudication in suit. 5. Advocate Mr. Dhorde has supported the appellate judgment. According to him when there is no partition in the family, sister whether married or not, continues in joint possession with her brothers and therefore, the temporary injunction as granted needs to be sustained. 6. After hearing the respective Counsel, it is apparent that respondent no.1 has not claimed any exclusive possession. Infact nature of possession as such or its extent has not been expressly disclosed in the plaint. Appellate Court has granted relief only because of her status as co-parcener. Question, whether there was partition between brothers, whether partition is in pursuance of earlier suit, was fraud on sister and whether any sale deed has been executed in accordance with law in favour of the petitioners by vendor, are disputed questions. The petitioners would not have purchased the property if their vendors were not in position to put them in possession. Appellate Court has overlooked most material aspects i.e. of physical possession and hence, I find application of 3 wp1307.11 mind by appellate Court, unsustainable. 7. However, petitioners can not be permitted to render the suit itself infructuous by their subsequent acts and conducts. The petitioners are restrained from creating any third party interest or changing the nature of suit property. Proceedings in Regular Civil Suit No. 355 of 2009 are already expedited by the appellate Court and hence, the present Writ Petition is partly allowed. The impugned order to the extent it restrains the present petitioners from interfering with possession and enjoyment of respondent no. 1-plaintiff over suit land is quashed and set aside. The petitioners are however, restrained from creating any third party interest or from creating any encumbrances on the suit property during the pendency of the suit. 8. With these observations and directions, the present Writ Petition is thus partly allowed. No costs. (B.P. DHARMADHIKARI) JUDGE gas/wp1307.11