1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.1202 OF 2009 Sharad Shantaam Joshi ...Petitioner vs. Vilas Shantaram Joshi & Anr. ...Respondents Mr.Dilip Bodake for the petitioner Mr.Madhav Jamdar for respondent nos.1 and 2 CORAM :A.S.OKA,J. DATE : FEBRUARY 2, 2010 P.C. 1 Heard the learned counsel for the petitioner. The petitioner filed a suit simplicitor for injunction against the respondents who are his real brothers. The petitioner claims to be an exclusive owner of the suit property. The case of the petitioner is that after acquiring the suit property in the year 1985, he started construction of a house after demolishing the old house. His case is that the respondents obstructed to work of construction and therefore, the suit was required to be filed. The defence of the respondents by way of reply was that the petitioner is not the exclusive owner of the suit property. Reliance is placed on the writing which is allegedly signed by the petitioner in which the petitioner accepted that he himself and the respondents are the joint owners of the suit property. The trial Court passed an order of injunction which has been set aside by the impugned order passed by the District Court. 2 The learned counsel for the petitioner submitted that the petitioner is denying the writing relied upon by the respondents. He submitted that the petitioner demolished the old house on the suit property and after 2 obtaining of the requisite permission, he is constructing a new house. The respondents allowed the petitioner to take steps and only when the construction came up to plinth level, they obstructed the construction. He submitted that the petitioner is not going to claim any equity and therefore, he may be permitted to construct a house on the suit property. The learned counsel for the respondents submitted that there is already a Counter- claim filed by the respondents seeking partition. He submitted that the writing relied upon by the respondents is in the handwriting of the petitioner. 3 I have considered the submissions. As stated earlier, now there is a Counter-claim filed by the respondents claiming partition of the suit property. Reliance was placed on the writing allegedly signed by the petitioner in which there is an admission that the suit property is the joint property of the brothers. After considering the said document, the Appellate Court was of the view that the petitioner was disentitled to claim equitable relief of temporary injunction. Now, there is a Counter-claim filed by the respondents for partition and separate possession. Considering the small area of the suit property and considering the fact that the Counter-claim for partition is pending, this is not a case where interference can be made to the discretionary order passed by the Appellate Court. 4 Hence, no case for interference is made out. Writ Petition is rejected. 5 All contentions of the parties on merits of the suit and Counter-claim are kept open. The issue relating to the alleged writing of the petitioner is also kept open. Hearing of the suit and the Counter-claim is expedited. 3 The concerned Court will hear and decide the suit as expeditiously as possible and the same shall be decided on or before 31 st October 2010. JUDGE