(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 5359 OF 2009 1. Smt. Radhabai w/o. Sonu Gadhari, .. Petitioners 2. Shri Ramrao Bhila Gadhari, (Original respondent 3. Shri Shaymrao Bhila Gadhari. nos.1 to 3 in appeal) versus 1. Sushilabai Vishram Gadhari, .. Respondents 2. Adhikar Vishram Gadhari, (Nos.1 and 2 - 3. Tulsabai w/o. Uttam Gadhari, Original appellants & 4. The Collector, Jalgaon, Nos.3 and 4 - District : Jalgaon. Original respondent nos.4 and 5 ) .......................... Mr. G.V. Wani, Advocate, for the petitioners. Mr. R.M. Deshmukh, Advocate, for respondent nos.1 to 3. Mr. S.G. Nandedkar, Assistant Government Pleader, for respondent no.4. .......................... (2) CORAM : B.R. GAVAI, J. DATE : 15TH DECEMBER 2009. COURT'S ORDER : 1. By way of present petition, the petitioners have challenged the order dated 17th July 2009, passed by the learned District Judge-2, Jalgaon, in Miscellaneous Civil Appeal No. 27/2008, thereby allowing the appeal filed by the respondent nos.1 and 2 herein, and setting aside the order passed by the learned 2nd Joint Civil Judge (Senior Division), Jalgaon, dated 1st March 2008, below Exhibit 6 in Regular Civil Suit No. 19 of 2008. 2. The petitioners have filed a suit for partition, declaration of their right of pre-emption and perpetual injunction. Along with the said suit, an application for temporary injunction was also filed. The same came to be allowed. Being aggrieved thereby, the respondent nos.1 and 2 herein preferred an appeal. The appeal came to be allowed and the order of injunction is set aside. Hence, the present petition. 3. Mr. G.V. Wani, learned Counsel appearing for the petitioners, submits that the learned Judge of the trial court has upon consideration of the material on record, granted injunction. The same ought not to have been reversed. He further submits that the entries in the revenue record were on the basis of family arrangement and not a partition. He submits that the claim of petitioner no.1, who is sister in the (3) partition, is yet to be adjudicated. He further submits that, in any case, petitioner nos.2 and 3, who are adjoining owners, have a right of pre- emption. 4. Mr. R.M. Deshmukh, learned Counsel appearing for respondent nos.1 to 3, submits that the learned Judge of the appellate court has rightly reversed the order of injunction, inasmuch as, there was no documentary evidence in support of case of the petitioners. 5. No doubt, that the appellate court, while exercising jurisdiction under Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908, can reverse an order of injunction only if it is found that the view taken by the trial court is either perverse or impossible. In the present case, the learned Judge of the appellate court has found that the finding by the trial court was only on conjunctures and surmises and ignoring documentary evidence. It has been found that from the revenue record, it was clear that in the year 1994 itself, partition was effected during the lifetime of the deceased father of the petitioners, who is father-in-law of respondent no.1. Admittedly, there were three sons of deceased Bhila, namely, Ramrao, Shyamrao and Vishram, who was husband of respondent no.1. It has been found that right from 1994, the revenue entries establish that there was a partition between three brothers. In that view of the matter, the learned Judge of the appellate court found that an order of injunction cannot be issued against the respondents herein, who were holding their share on the basis of the partition. 6. It is further to be noted that though the petitioner no.3 herein (4) was a party to the earlier proceedings, which came up to this court, by way of Writ Petition No. 4262/2004 and wherein this court confirmed the prima facie finding of the appellate court in Miscellaneous Civil Appeal No. 81/2002, thereby negating the finding regarding the family arrangement, the petitioners have not even whispered about the said proceedings either in the plaint or in the present petition. In that view of the matter, apart from not noticing any perversity in the approach adopted by the learned Judge of the appellate court, the petitioners are further not entitled to equitable relief under Article 227 of the Constitution, on the ground of suppression of material facts from the trial court, as well as, this court. 7. In that view of the matter, no case is made out for interference. The petition is, therefore, dismissed. 8. At this stage, the learned Counsel appearing for the petitioners, requests for extension of status quo, which was granted by this court, for a period of four weeks. 9. In the peculiar facts and circumstances of the case noted above, and particularly, regarding conduct of the present petitioners in not coming to the court with clean hands, I am not inclined to grant the said prayer. The same is rejected. ( B.R. GAVAI ) JUDGE bgp/wp5359