1 WP No.3646/11 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3646 of 2011 Mansingrao Vasantrao Jagdale ... Petitioner versus Prakash Shashikant Chavanand ors. ... Respondents ... Mr.P.M.Arjunwadkar for the petitioner. Mr.P.B. Gujar for the respondent nos.1 to 8. CORAM : D.G. KARNIK, J DATED : 12th July 2011 P.C. 1. Respondents are the original plaintiffs and petitioner is the original defendant. Respondents filed a suit against the petitioner for an injunction restraining him from disturbing their joint possession of the property bearing Gat No.914 admeasuring 0.57 R (for short “the suit property”) and an injunction restraining him from carrying out any construction thereon. 2. Admittedly, suit property is a joint family property of which the respondents and one Vithal Maruti Chavan were the members. According to the petitioner, by a sale deed dated 15 November 2002, he purchased a portion of the suit property from Vithal Maruti Chavan and was put in possession of that portion and therefore he 2 WP No.3646/11 has a right to possess it and carry out construction thereon. Accepting the contention of the petitioner, the trial court dismissed the application for an interim injunction during the pendency of the suit but on appeal the appellate court reversed the decision and granted interim injunction restraining the petitioner from disturbing the joint possession of the respondents and carrying out construction on any portion of the suit property. 3. Learned counsel for the petitioner submitted that there was a partition of the suit property and a specific portion was allotted to Vithal Maruti Chavan – his vendor in the partition and his vendor had sold that specific portion to him. He was therefore entitled to possess that portion and carry out construction thereon. The contention is without merit. Copy of the sale deed produced on record shows that petitioner had purchased 7 anna 1 pai (about 7.1/16th undivided share) in the suit property. The description of the property shows that he had purchased only an undivided share and not a specific portion in the suit property. Assuming that he was put in possession (which fact is disputed by the respondents) his possession at the most would be a joint possession and he would not be entitled to exclude the respondents from joint possession of the property he cannot use any part of the suit property exclusively by carrying out any construction on it. The lower appellate court has granted injunction restraining him from disturbing joint possession of the respondents and no error can be found in the said decision. Similarly, until a partition is effected he cannot claim right in any specific portion of the suit property and carry out any construction therein. Therefore, the injunction granted by the 3 WP No.3646/11 District Court restraining him from carrying out construction also is a proper order. 4. Learned counsel for the petitioner relied upon a decision of the Supreme court in Mandali Ranganna and ors Vs. T. Ramchandra and ors, (2008) 11 SCC 1 in support of his contention that unless a strong prima facie case was made out and unless it was shown that the balance of convenience is in favour of the party claiming injunction, the injunction cannot be granted. The principle is undisputed. However, in the facts of the case in my view, the lower appellate court has rightly held that there was a strong prima facie case and balance of convenience was in favour of the respondents. 5. The view taken by the District Court in granting injunction is a possible view and calls for no interference in exercise of an extra ordinary jurisdiction under Article 227 of the Constitution of India. Writ Petition is rejected summarily. (D.G.KARNIK, J)