IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CIVIL CIVIL CIVIL APPLICATION NO. 517 OF 2007 APPLICATION NO. 517 OF 2007 APPLICATION NO. 517 OF 2007 inin in FIRST FIRST FIRST APPEAL NO.2845 OF 2007 APPEAL NO.2845 OF 2007 APPEAL NO.2845 OF 2007 Shri Shri Shri Madan Punjaram Sapkal .. Applicant Madan Punjaram Sapkal .. Applicant Madan Punjaram Sapkal .. Applicant vs vs vs 1.Shri 1.Shri 1.Shri Yogibaba Anad Nath & ors..Respondents Yogibaba Anad Nath & ors..Respondents Yogibaba Anad Nath & ors..Respondents Ms.Kavita Ms.Kavita Ms.Kavita Pawar i/b Mr.Sanjay Kshirsagar Pawar i/b Mr.Sanjay Kshirsagar Pawar i/b Mr.Sanjay Kshirsagar for for for Applicant Applicant Applicant Mr.P.J.Pawar Mr.P.J.Pawar Mr.P.J.Pawar for Respondents for Respondents for Respondents CORAM CORAM CORAM : : : A.S.OKA, A.S.OKA, A.S.OKA, J J J DATED DATED DATED : : : 31st 31st 31st January, 2008 January, 2008 January, 2008 P.C. P.C. P.C. 1.1.1. Heard advocates appearing for the parties. The Heard advocates appearing for the parties. The Heard advocates appearing for the parties. The application application application for stay is opposed by the first for stay is opposed by the first for stay is opposed by the first respondent. respondent. respondent. Reliance is placed on an affidavit of Reliance is placed on an affidavit of Reliance is placed on an affidavit of the the the Constituted Attotney of the first respondent. Constituted Attotney of the first respondent. Constituted Attotney of the first respondent. ItItIt is pointed out that the decree is passed for is pointed out that the decree is passed for is pointed out that the decree is passed for specific specific specific performance against the applicant and 2nd performance against the applicant and 2nd performance against the applicant and 2nd toto to 4th respondents herein. Placing reliance on 4th respondents herein. Placing reliance on 4th respondents herein. Placing reliance on 7/12 7/12 7/12 extracts extracts extracts annexed to the affidavit in reply, it annexed to the affidavit in reply, it annexed to the affidavit in reply, it isisis submitted that there are four distinct portions submitted that there are four distinct portions submitted that there are four distinct portions of of of the suit properties separately held by the the suit properties separately held by the the suit properties separately held by the applicant applicant applicant and by 2nd to 4th respondents. It is and by 2nd to 4th respondents. It is and by 2nd to 4th respondents. It is submitted submitted submitted that as 2nd to 4th respondents have not that as 2nd to 4th respondents have not that as 2nd to 4th respondents have not preferred preferred preferred any appeal, the stay to the decree for any appeal, the stay to the decree for any appeal, the stay to the decree for possession possession possession be confined to the part of the suit be confined to the part of the suit be confined to the part of the suit property property property standing in the name of the applicant and standing in the name of the applicant and standing in the name of the applicant and inin in respect of the rest of the properties, the respect of the rest of the properties, the respect of the rest of the properties, the decree decree decree for possession be allowed to be executed. for possession be allowed to be executed. for possession be allowed to be executed. ItItIt is submitted that the very fact that 7/12 is submitted that the very fact that 7/12 is submitted that the very fact that 7/12 extracts extracts extracts of four different portions of the suit of four different portions of the suit of four different portions of the suit properties properties properties stand stand stand separately in the name of the four separately in the name of the four separately in the name of the four original original original defendants, there was a partition executed defendants, there was a partition executed defendants, there was a partition executed amongsts amongsts amongsts the original defendants. the original defendants. the original defendants. 2.2.2. The appeal challenging the decree for specific The appeal challenging the decree for specific The appeal challenging the decree for specific performance performance performance passed passed passed against the applicant and 2nd to against the applicant and 2nd to against the applicant and 2nd to 4th 4th 4th respondents has been admitted. In the respondents has been admitted. In the respondents has been admitted. In the meanwhile, meanwhile, meanwhile, conveyance has been executed in terms of conveyance has been executed in terms of conveyance has been executed in terms of the the the decree through a Court Commissioner. decree through a Court Commissioner. decree through a Court Commissioner. 3.3.3. Clause 2 of the said conveyance itself records Clause 2 of the said conveyance itself records Clause 2 of the said conveyance itself records that that that the suit property is the property of joint the suit property is the property of joint the suit property is the property of joint family family family of the original defendants. There is of the original defendants. There is of the original defendants. There is nothing nothing nothing on record which is reflected from the on record which is reflected from the on record which is reflected from the judgment judgment judgment of the trial Court to show that there was of the trial Court to show that there was of the trial Court to show that there was a partition effected by and between the defendants partition effected by and between the defendants partition effected by and between the defendants toto to the suit. In the absence of any evidence of the suit. In the absence of any evidence of the suit. In the absence of any evidence of partition, partition, partition, only on the basis of entries in the only on the basis of entries in the only on the basis of entries in the revenue revenue revenue record, it cannot be held that the share of record, it cannot be held that the share of record, it cannot be held that the share of the the the applicant has been separated. applicant has been separated. applicant has been separated. 4.4.4. In this view of the matter, ad interim relief In this view of the matter, ad interim relief In this view of the matter, ad interim relief granted granted granted on 13th December, 2007 deserves to be on 13th December, 2007 deserves to be on 13th December, 2007 deserves to be continued. continued. continued. 5.5.5. Accordingly, Civil Application is disposed of Accordingly, Civil Application is disposed of Accordingly, Civil Application is disposed of by by by directing that ad interim order passed on 13th directing that ad interim order passed on 13th directing that ad interim order passed on 13th December, December, December, 2007 will continue to operate as interim 2007 will continue to operate as interim 2007 will continue to operate as interim order. order. order. Applicant is hereby restrained from Applicant is hereby restrained from Applicant is hereby restrained from creating creating creating any third party interests in respect of any third party interests in respect of any third party interests in respect of the the the suit property and from parting with possession suit property and from parting with possession suit property and from parting with possession of of of the suit property to any third party. the suit property to any third party. the suit property to any third party. (A.S.Oka, (A.S.Oka, (A.S.Oka, J) J) J)