1 wp 4198.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4198 OF 2011 Mukta Keru Kokare and others .. Petitioners Versus Mhalsabai Kashinath Takle and another .. Respondents Shri H. D. Deshmukh, Advocate for Petitioners. CORAM : S. V. GANGAPURWALA, J. DATE : 20TH JUNE, 2011. PER COURT : . The petitioners assail the order dated 15.03.2011 passed by the District Judge - 1, Shrirampur thereby restraining the present petitioners from alienating, transferring or creating any third party interest over the properties involved in the appeal. 2. The plaintiffs had filed a suit for partition and separate possession which came to be dismissed. Aggrieved thereby the plaintiffs filed an appeal bearing R.C.A. No. 14/2011. In the said appeal an application Exhibit 07 was filed seeking injunction against the respondents from alienating, transferring or creating 2 wp 4198.11 third party interest. The said application came to be allowed. Aggrieved thereby the present petition is filed. 3. Shri H. D. Deshmukh, the learned counsel for petitioners vehemently submitted that Trial Court has dismissed the suit holding that already the partition has taken place and as such suit itself was not maintainable. In view of the clear finding, the petitioners could not have been restrained from exercising their ownership rights over the suit property. The petitioners had also been sanctioned loan on mortgage of their share, but because of the injunction order the same is not been disbursed. The learned counsel contends that in any case the fact that the petitioners have their share is not been denied. As such, the learned counsel in alternate submits, at least to the extent of their share, there is no impediment for creating mortgage. 4. No doubt, the suit filed by the plaintiffs for partition has been dismissed by the Trial Court. The said decree is assailed in appeal. The first appellate Court is the last fact finding Court, wherein the Courts would be required to re-appreciate the whole evidence. Be that as it may, the respondents have been injuncted from alienating, transferring or creating third party interest, 3 wp 4198.11 that does not mean that the petitioners are restrained from cultivating the land. Taking into account the nature of the dispute and without going into the factual merits of the matter, I feel it appropriate to direct the lower Appellate Court to dispose of the appeal itself on merits. 5. In the result, the writ petition is disposed of. The lower Appellate Court shall decide the appeal as expeditiously as possible and preferably within a period of three months from today. [ S. V. GANGAPURWALA, J. ] bsb/June 11