1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Notice of Motion No. 4231 of 2009 . in Suit No. 1562 of 2009 Mr.Laxmikant K. Mhatre .. Plaintiff v/s. Bharat K. Mhatre ..Defendant Mr.P.J.Pandit i/b. S.V.Phadke for the Plaintiff. Mr.N.M.Gunjalkar i/b. Ms.V.N. Bangera for the Defendant CORAM : R.Y.GANOO, J. DATED : 23rd June , 2010 P.C. : 1. Heard learned Counsel on both sides. The suit is filed by the plaintiff to have share in the estate of his father in regard to the properties described in the plaint. Plaintiff admits that his father left behind him, plaintiff and defendant as heirs and the properties are to be divided between the two equally. It is noticed that the plaintiff and defendant are unable to settle their claims and settlement is not possible. 2 2. By this motion, plaintiff has sought relief in terms of prayer clauses (a), (b) and (c). Learned Counsel for the defendant contended that the defendant has undivided share in the properties in regard to which the suit has been filed and therefore the injunction cannot be issued restraining him from creating third party rights as regards the undivided share. The submission is right, at the same time since there is no division of the properties, defendant will not be able to part with possession of his share, as his share is not earmarked or specified as of today. Similarly, the defendant will not be able to develop or carry out any construction on the property as it would hamper the right of the plaintiff. To that extent the order will have to be passed keeping in view the prayer of the motion. 3. As of today, no case for appointment of Receiver is made. Hence relief in terms of prayer clase (c) cannot be granted. 4. Learned Counsel for the defendant submitted that the defendant be permitted to carry out repairs and/or do the painting work etc in respect of the structures as and by way of maintenance of the suit 3 property. The submission is fare and permission to that extent can be granted. Ofcourse, defendant will have to inform the plaintiff about the work to be carried out by him. Hence the order: ORDER i) Defendant is permitted to create third party right as regards his undivided share in regard to the various properties described in the plaint. He is however prohibited from parting with possession in respect of his undivided share. ii) The defendant is restrained from developing his undivided share or carry out any construction on the plot. If the defendant receives any notice from the Corporation about the demolition of a structure, the defendant shall inform about the same to the plaintiff and after taking into consideration the various facts the plaintiff and defendant shall act accordingly. iii) Defendant is permitted to carry out repairs or undertake painting work, or general maintenance in respect of the structures standing on 4 the said plots of land. Defendant shall before carrying out such work shall give 15 days notice in writing to the plaintiff. iv) There shall be no order as to costs. v) Written statement is already filed by the defendant. Suit to come up in due course. [R.Y.GANOO, J.]