( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO.340 OF 2009 Raju s/o Madhukarappa Kure APPELLANT VERSUS Kailash s/o Madhukarappa Kure and others. RESPONDENTS ..... Mr. P.N. Sonpethkar, advocate for the appellant. Mr. S.G. Chapalgaonkar, advocate for respondent No. 1. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 16th November, 2009] PER COURT : 1. Heard learned counsel for the parties. 2. This second appeal is preferred by original defendant. The suit was decreed and injunction decree was granted in favour of respondent (plaintiff) while deciding the suit (R.C.S. No. 83/2001). Aggrieved thereby, the defendant (present appellant) preferred appeal bearing R.C.A. No. 26/2005. The first Appellate ( 2 ) Court held that the plaintiff’s suit simplicitor for injunction was not maintainable in respect of specified portion of suit land i.e. Gat No. 175/4. The first Appellate Court, however, partly allowed the appeal and modified the decree restraining the present appellant was alienating any part of land Gat No. 175/4 and also granted liberty to the respondent No.1 – Kailas to file suit for partition and separate possession. 3. I am informed that such a suit has been already filed by respondent No.1 Kailas seeking partition and separate possession. That suit is now pending before the civil Court. Obviously, there could not be perpetual injunction and the decree is improper. Hence, the said part of the impugned decree rendered by the first Appellate Court will have to be set aside and if defendant No.1 Kailas desires any such injunction during pendency of the suit filed by him, he may file separate application/proceedings for such purposes. In the meanwhile, however, the effect of such injunction decree may be continued for four weeks. ( 3 ) 4. With the above observations, the second appeal is dismissed, but the injunction restraining the respondent No.1 Kailas is de-clamped. However, it may be deemed as continued for four weeks hereafter. It is brought to my notice that already, ad-interim injunction is granted on an application filed by respondent No.1 Kailas to maintain status quo. The above continuity of injunction for four weeks is subject to decision of the trial Court on application (Exh-5) in the said suit bearing R.C.S. No. 15/2009. It is further clarified that liberty granted to the respondent No. 1 to file fresh suit for partition and separate possession shall not influence the trial Court to infer any relaxation in term of limitation or observations on merits. The second appeal is dismissed. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/sa340-09