1 W.P. 5728.2011 - [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5728 OF 2011 1. Dnyanoba S/o Shamrao Dhotre Age : 65 Yrs., Occ. Agriculture, R/o : Ujalamba, Tq. & Dist. Parbhani. 2. Dattarao S/o Dnyanoba Dhotre Age : 40 Yrs., Occ. Agriculture, R/o : Ujalamba, Tq. & Dist. Parbhani. ..... PETITIONERS V E R S U S 1. Mahadu S/o Narayanrao Jawale Age : 31 Yrs., Occ. Agriculture, R/o : Singanapur, Tq. & Dist. Parbhani. 2. Narayan S/o Mahadu Jawale Age : 65 Yrs., Occ. Agriculture, R/o : Singanapur, Tq. & Dist. Parbhani. 3. Kalawati Narayan Jawale Age : 60 Yrs., Occ. Household, R/o : Singanapur, Tq. & Dist. Parbhani. 4. Sau. Drupadabai W/o Manikrao Gore 2 W.P. 5728.2011 - [ J ] Age : 23 Yrs., Occ. Household, R/o : Umri, Tq. & Dist. Parbhani. 5. Sau. Rani W/o Subhashrao Patharkar Age : 20 Yrs., Occ. Household, R/o : Karhad, Dist. Satara, 6. Kum. Shambala D/o Narayan Jawale Age : 11 Yrs., Occ. Education, Minor, U/g of respondent no. 1 Narayan Jawale, R/o : Singnapur. 7. Kum. Jyoti D/o Narayan Jawale Age : 13 Yrs., Occ. Education, Minor, U/g of respondent no. 1 Narayan Jawale, R/o : Singnapur. ..... RESPONDENTS Mr. V.D.Salunke, Advocate for the petitioners. Mr. M.M.Patil ( Beedkar ), Advocate for Resp.No.1. CORAM : S.V.GANGAPURWALA, J. DATE OF JUDGMENT : 14/12/2011. ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the respective parties, taken up for final hearing. 2. Mr. M.M.Patil ( Beedkar), the learned counsel appears for the 3 W.P. 5728.2011 - [ J ] original plaintiff. The other respondents are also served. None appears for them. 3. The present respondent no. 1 has filed Suit for partition and separate possession of his 1/7th share. The present petitioners, who are defendant nos. 7 and 8 have also filed counter claim seeking injunction. The plaintiffs and defendants both filed application for temporary injunction. The trial Court rejected the temporary injunction application of the plaintiffs and granted temporary injunction application of defendant nos. 7 and 8. Aggrieved thereby, the plaintiffs preferred Appeal before the District Court. The District Court confirmed the order of the trial Court to the extent of rejection of the application of the plaintiffs for temporary injunction. However, set aside the order granting temporary injunction to defendant nos. 7 and 8, so also, the District Court directed the parties to file application for appointment of receiver. The said order is assailed by the defendant nos. 7 and 8 in the present Writ Petition. 4. Mr. V.D.Salunke, the learned counsel for the petitioners submits that the District Court could not have issued such a direction thereby directing the parties to file an application before the trial Court to appoint Receiver. The same was beyond the jurisdiction of the District Court. The learned counsel further contends that the trial Court had 4 W.P. 5728.2011 - [ J ] specifically come to the conclusion that the defendant nos. 7 and 8 have prima facie proved their possession over 2 Acres of land purchased by them and that in the relevant period, they have sown the crops. The appellate Court without dilating on the said aspect, has rejected the application of defendant nos. 7 and 8 only on the ground that the injunction can not be issued against the co-owner. 5. Mr. M.M.Patil, the learned counsel for respondent no. 1/original plaintiff submits that the property is impartible. The plaintiff is co-owner. No injunction can be granted against the co-owner. Even otherwise, the Court has discussed about the actual possession. The dispute about the mutation entries is going on. When the lower appellate Court has properly exercised the discretion, the same may not interfered in the writ jurisdiction. 6. With the assistance of the learned counsel, I have gone through the orders. 7. In the operative part of the order, the District Court has directed the plaintiff and defendant nos. 7 and 8 to appear before the trial Court and either the appellant or respondent no. 8 to move an application for appointment of Receiver. Such an order could not have been passed. 5 W.P. 5728.2011 - [ J ] Whether to file an application for appointment of Receiver or not, is the domain of the party. No such directions can be issued. The Court does not possess that jurisdiction. 8. As far as the rejection of an application of the plaintiff for temporary injunction is concerned, it seems that the plaintiff has not assailed the said order. So far as rejection of application of defendant nos. 7 and 8 is concerned, it appears that the trial Court has specifically held on the basis of prima facie satisfaction that defendant nos. 7 and 8 are in possession. The property i.e. 2 Acres is purchased by them and they had also sown the crops and the panchanama was also relied. The District Court has not given any such finding. It is trite that the appellate Court shall be loath in interfering with the discretion of the trial Court in respect of grant of injunction. 9. In view of the above, the impugned order is quashed and set aside. The application Exh. 31 filed by defendant nos. 7 and 8 in R.C.S. No. 23 of 2009 is allowed. 10. Rule is accordingly made absolute in above terms. No costs. 11. Needless to state that the observations made herein are prima 6 W.P. 5728.2011 - [ J ] facie in nature. The trial Court shall decide the Suit expeditiously and preferably within the period of nine ( 9 ) months from today. [ S.V. GANGAPURWALA,J. ] KNP/W.P. 5728.2011 - [ J ]