1 ao 318-2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 318 OF 2010 Shri Vinayak Jagannath Dagade ...Appellant vs. Shri Jaban alias Jagannath Bala Dagade & Ors. ...Respondents Mr.P.M. Shah i/b. Mr.Avinash B. Avhad for the Appellant. Mr.Sarang Aradhye for Respondent No.1. Mr.Y.S. Jahagirdar and Mr.G.S. Godbole for Respondent Nos.18 and 20. CORAM : B.R. GAVAI, J. DATED : JANUARY 21, 2011 P.C :- 1 By way of present appeal, the appellant challenges the Order dated 14th August, 2009 vide which the application filed by the present appellant for temporary injunction seeking an order restraining the respondents from creating third party rights in the suit property came to be rejected. 2 ao 318-2010 2 The plaintiff, who is son of defendant no.1 and closely related to respondent nos.2 to 17, has filed the suit for injunction and declaration. Along with the suit, he has filed an application under Order 39 Rule 1 and 2 of the CPC. 3 The basic contention of the appellant- plaintiff is that the suit property mentioned in para 1 of the suit is joint family and ancestral property. It is his contention that without the said property being partitioned, by metes and bounds, defendant nos.1 to 17 have executed illegal and unauthorised registered Development Agreement on 4th January, 2006. It is further the contention of the plaintiff that even the subsequent Sale Deed dated 31st December, 2007 has been executed in an illegal manner and as such not binding on the present appellant-plaintiff. The application was resisted by the defendants by filing replies. Defendant No.1, who is the father of the present plaintiff, has specifically stated that the plaintiff was not in 3 ao 318-2010 actual possession of the suit property. The defendant no.1 specifically stated that the transaction entered into between the defendant nos.1 to 17 on one side and with defendant no.18 on other side was in the interest and welfare of the joint family. The defendant no.1 admitted regarding acceptance of amount of Rs.59,96,000/- as shown in the Development Agreement. In this background, the learned trial court rejected the application. Being aggrieved thereby, the present appeal is filed. 4 Shri Shah, learned Counsel for the appellant submits that unless the property is partitioned by metes and bounds, defendant nos.1 to 17 had no right to sell the property and the defendant no.18 had no right to purchase the same. It is further submitted that the plaintiff is in a joint possession of the suit premises along with defendant nos.1 to 17 and as such, the order of injunction as prayed for ought to have been granted by the learned trial court. 4 ao 318-2010 5 Shri Jahagirdar, the learned Senior Counsel appearing for respondent No.18 and Shri Sarang Aradhye, learned Counsel for respondent no.1 submit that the trial court has correctly refused the injunction and as such, there is not merit in the appeal. 6 The Courts at the stage of grant of injunction are required to consider the tests of prima facie case, balance of convenience and irreparable injury. It is specific contention of the respondent no.1 that the property, in question, is self acquired property and not ancestral property. It is also the contention of the defendant nos.1 to 17 that they have executed the Development Agreement and thereafter, the Sale Deed for legal necessity and for the benefit of joint family. The defendant no.18 has parted with the substantial amount. It could, thus, be seen that on one hand, there is overwhelming interest of 17 members in the family 5 ao 318-2010 and that too, according to them, it is a self acquired property by defendant no.1 and on the other hand, is the interest of the sole plaintiff. It is specific contention of the defendant no.1 that the present plaintiff has been paid amount of Rs.36 lakhs, though Shri Shah has disputed this position and submitted that the said amount is in respect to some other transaction. Without going into rival contentions, the fact that is admitted is that the plaintiff has received an amount of Rs.36 lakhs from the defendant no.1. 7 It is further to be noted that in the Development Agreement itself, an area of 3.89 R has been earmarked for the plaintiff and that the said area is not part of the Development Agreement and Sale Deed. 8 The learned Counsel, Shri Aradhye, specifically stated that the said area has been earmarked for the purpose of the plaintiff only. 6 ao 318-2010 Even applying the tests of balance of convenience and irreparable injury, no fault could be found with the order passed by the learned trial court. The interest of the present plaintiff is squarely safeguarded inasmuch as the defendant no.1 makes a specific statement that an area of 3.98 R has been earmarked for the plaintiff. In case the injunction would have been granted, the irreparable injury would have been caused to the defendant No.18 who, after having parted with the substantial amount, would have been deprived of carrying on the development activities. Not only that, but the plaintiff-appellant having received the substantial amount could have enjoyed the order of injunction after receiving a substantial amount. As such, I am of the considered view that the trial court has correctly applied the principles that govern grant/refusal of injunction. 9 In that view of the matter, no merit is found in the appeal. Appeal is rejected. In view of 7 ao 318-2010 the rejection of the appeal, nothing survives in the Civil Application. The same is also rejected. (B.R. GAVAI, J.)