1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL JURISDICTION APPEAL FROM ORDER NO.236 OF 2009 WITH CIVIL APPLICATION NO.286 OF 2009 Mahadev M. Gavande & Ors. ...Appellants. v. Smt. Smita A. Gavande & Ors. ...Respondents. Mr. Nitin Mulye, adv. For the Appellant. Mr. S.P. Thorat, adv. For the Respondent Nos.1 and 2. CORAM : J.H. BHATIA, J. DATED : APRIL 20, 2010 P.C. 1 Heard the learned counsel for the Parties. 2 Respondent nos.1 and 2 are the original plaintiffs and the present appellants are the original defendant nos.1 to 5. Son of the defendant nos.1 and 2 namely, Amol was husband of the plaintiff no.1. Plaintiff No.2 is minor daughter of the plaintiff no.1 and deceased Amol. Plaintiffs filed S.C.Suit No.11/07 for partition and separate possession. Therein they filed an application, Ex.5 for temporary injunction restraining the defendants from creating any third party interest in the suit property. According to her, there was joint family and joint family property in the hands of the defendant nos.1 to 4. Deceased Amol being member of the joint family was entitled to share in the property. Besides 2 this, he had also entered into a contract to develop certain land at Village Otur belonging to the defendant nos.15 to 21. Under that contract, he had certain rights in the property to develop. Due to his demise on 30th March, 2006, the right to develop the property was given to the defendant no.1, father of the deceased Amol and that work is now in progress. According to her, defendants were likely to dispose off the property and deprived the plaintiffs of their share, therefore, plaintiffs sought temporary injunction. 3 Application was opposed by the defendants and it was denied that there was any joint family or joint family property. It is contended that as far as property survey no.180/11/2 situated at Otur is concerned, it belongs to the defendant nos.15 to 21 and under the power of attorney executed in favour of the defendant no.1, he is developing the same and, therefore, the plaintiffs have no right. It is contended that as far as property shown in paragraph 1B is concerned, it was purchased by the defendant no.2, i.e., the mother of the deceased Amol and, therefore, plaintiffs have no right in the property. 4 The trial Court after hearing the parties, considered the pleadings and the several documents and came to conclusion that prima- facie there appears that Amol was member of the joint family property 3 or he had share in the suit property and, therefore, plaintiffs may also be entitled and hence, it is necessary to protect the property till the suit is decided. Accordingly, temporary injunction was granted. 5 The learned counsel for the defendants/appellants has taken me through the several documents to show that there was no joint family property, therefore, suit for partition itself is not tenable in law. The learned counsel has particularly referred to two documents, one is partition deed dated 16.8.2003 executed between the defendant no.2 Shobha and one Kusum R. Hulawale. It shows that in their joint names, land survey no.578/1 of village Otur was purchased. They partitioned the land under the said document and half of the property came to the share of the defendant no.2. Document does not show as to when this property was purchased by said two ladies. Copy of the sale deed is not produced before the Court to show when and how this property was purchased by the defendant no.2 and another lady. No material was placed on record to show that the defendant no.2 had independent source of income and with that income that property was purchased. No material is brought on record to show that prior to purchase of this property, family did not have any joint family property. It is true that burden to prove that there was joint family and such joint family was 4 having joint family property is on the plaintiffs but the plaintiffs have specifically pleaded that there was joint family and it was holding joint family property. It was also contended that suit property is the joint family property. Whether it is joint family property or not it is to be considered at the time of trial of the suit. 6 Another document relied upon by the defendants is irrevocable power of attorney executed by the defendant nos.15 to 21 in favour of the defendant no.1. Under that power of attorney executed and registered on 7-1-2006, the defendant nos.15 to 21 had entered into an agreement with the deceased Amol and on 25.7.2006, they executed similar registered power of attorney in favour of defendant no.1 giving him right to develop the property being survey no.180/11/2 situated at Otur. It also shows that Amol had started certain work on that property. However, due to death of Amol on 30.3.2006, defendant nos.15 to 21 executed the said power of attorney in favour of the defendant no.1. Under this document, defendant no.1 got rights to develop and make construction of certain buildings including residential and commercial premises on the property. It clearly shows that after construction of ground floor, first floor and second floor consisting of several shops and tenements , same would be divided between the owners of the land and 5 developer. Not only this, after completion of the building known as Balaji Plaza, if any additional F.S.I. would be given, in that additional F.S.I. also developer would have half share. All these rights were given to the deceased Amol under the original power of attorney dated 7.1.2006 and he had started the work. Power of Attorney in favour of the defendant no.1 was executed only because Amol had died. It means that the defendant no.1 got the rights or interest in the suit property and development only because of death of his son. In such circumstances, claim of the plaintiffs in that property can not be outright rejected. The trial Court considered all these aspects and held that there is prima-facie case in favour of the plaintiffs and it is necessary to grant temporary injunction to protect their interests. The relief of temporary injunction is discretionary in nature. It is settled position of law that the Appellate Court will not interfere in the discretion used by the trial Court unless the order passed by the trial Court is per-se wrong or illegal or perverse. I do not find any such flaw in the impugned order. Therefore, I do not see any reason to interfere in the impugned order. 7 For the aforesaid reasons, appeal stands dismissed. 6 8 As the appeal itself is dismissed, civil application no.286 of 2009 does not survive and stands disposed off accordingly. (J.H. BHATIA,J.)