930.ao.34.26 1/4 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Appeal Against Order No.34 of 2026 Jogindersingh Kartarsingh Makkad and others vs. Mahendarsingh Jogindarsingh Makkad and others =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Office notes, Office Memoranda of Coram, appearances, Court's orders Court’s or Judge’s Orders or directions and Registrar’s orders. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Mr. A.A. Dhawas, Advocate for the Appellants. Mr. V.S. Lokhande, Advocate for Respondent No.1. CORAM : Y.G. KHOBRAGADE, J. DATE : 21 st SEPTEMBER, 2 026. Heard the learned Counsel appearing for the appellants and the learned Counsel appearing for respondent No.1. Despite service, none appears for respondent No.2. 02. By the present appeal filed under Order 43 Rule 1(r) of the Code of Civil Procedure, the appellants take exception to the order dated 24/04/2026 passed below Exh.20 in R.C.A. No.17/2021 by the learned District Judge-1, Gadchiroli, thereby restraining the present appellants and respondent No.2, their servants, agents or any other person claiming through them from carrying out any construction in the suit premises bearing Survey No.5-7, Plot No.8, admeasuring 6000 sq. ft. (approximately), in any manner till the final disposal of the appeal. 03. Appellants Nos.1, 2, 3(A) to 3(C) and 4 are the original defendants and respondent No.1 is the original plaintiff. Respondent No.2 is the original defendant No.4 in Special Civil Suit No.32/2011. For the sake of brevity, the parties to the present appeal shall hereinafter be referred to by their original status as plaintiff and defendants. 2026:BHC-NAG:12574 930.ao.34.26 2/4 04. It is an admitted fact that the plaintiff filed Special Civil Suit No.32/2011 and prayed for a decree of partition and separate possession in respect of the suit land bearing Survey No.5-7, Plot No.8, admeasuring 6000 sq. ft. In fact, on 11/10/2011, the learned Civil Judge, Junior Division, Desaiganj, passed the judgment and decree holding that the plaintiff, defendant Nos.2, 4 and 5 had 1/20th (0.05) share each, defendant No.1 had 11/20th (0.55) share, and defendant Nos.3(A), 3(B) and 3(C) had 1/12th (0.083) share each in the following suit properties: Sr. No. Description of Properties Admeasuring Area Places where properties are situated (1) House Property bearing Plot No.8 556.4 Sq.Mtrs (6000 Sq.Ft.) Kannamwar Ward, Khasara No.5-7, Residential Colony, Desaiganj. (2) Land and Shop bearing No.55 27.87 Sq. Mtrs Land and Shop Constructed thereupon Mouza Desaiganj City, Nazul Bazar Department, Khasara No.22/80/1. (3) Abadi Land and House Property No.187/84 1800 Sq.Ft. Mouza Birsi Tukim/Shivaji Ward, Khasara No.147/2, Desaiganj. 05. Being aggrieved by the said judgment and decree, the present respondent No.1/original plaintiff filed R.C.A. No.17/2021, challenging the judgment and decree of partition. Respondent No.1/plaintiff also filed an application under Order 39 Rules 1 and 2 read with Section 151 of the C.P.C. and prayed for an injunction restraining the respondents/ defendants from raising any type of construction over the suit property during the pendency of the appeal. On 24/04/2026, the learned First Appellate Court passed an order below Exh.20 in R.C.A. No.17/2021 and restrained the present appellants/defendants, their servants, agents or any other person claiming through them from raising any construction over the suit property bearing Survey No.5-7, Plot No.8, admeasuring 6000 sq. ft., in any manner during the pendency of the appeal. 06. The learned Counsel appearing for the appellants canvassed that these appellants/defendants have no roof over their heads to take 930.ao.34.26 3/4 shelter and, therefore, there is a necessity to raise construction over the suit property. However, the learned First Appellate Court failed to consider the bona fide need of the appellants/defendants. Further, the shares of the present appellants/original defendants have already been worked out. Therefore, the present appellants/original defendants are having every right to raise construction over the suit property. However, the learned First Appellate Court failed to consider that the appellants have made out a prima facie case, that the balance of convenience lies in their favour and that no prejudice would be caused to the respondent/plaintiff. Hence, it is prayed that the impugned order be quashed and set aside. 07. Per contra, the learned Counsel appearing for respondent No.1/plaintiff contended that though the learned Trial Court passed the judgment and decree of partition, the shares have not been properly adjudicated between the parties to the suit. So also, no preliminary decree has been passed. Further, the shares of the parties to the suit have not been worked out. Therefore, in case the appellants/original defendants raise construction, in that event, the rights of respondent No.1 would be prejudiced. Therefore, considering the material available on record, the learned First Appellate Court has rightly passed the impugned order and restrained the appellants/defendants from raising any construction on the suit property. 08. Needless to say, the judgment and decree in respect of partition of the suit property is sub judice before the learned First Appellate Court. However, the appellants/original defendants tried to raise construction on the disputed suit property without ascertaining their respective shares. Therefore, the learned First Appellate Court passed the impugned order below Exh.20 and restrained the appellants/defendants from raising any construction on the suit property during the pendency of the appeal. 930.ao.34.26 4/4 09. Since the dispute regarding the shares amongst the plaintiffs and the defendants is sub judice, it would not be proper to permit the appellants/defendants to raise any construction on the suit property. Therefore, I do not find that the learned First Appellate Court has committed any error while passing the impugned order. I, therefore, do not find any substantial ground to interfere with the said finding. Hence, the appeal is liable to be dismissed. 10. The appeal stands dismissed with no order as to costs. 11. However, at the same time, with the consent of both the sides, the learned First Appellate Court is hereby requested to decide Regular Civil Appeal No.17 of 2021 as early as possible, preferably on or before 30th March, 2027. It is made clear that unnecessary adjournments shall be curtailed and, if continued adjournments are sought, the last adjournment shall be subject to payment of heavy costs of not less than Rs.25,000/-. 12. In view of dismissal of the appeal, the other pending civil applications, if any, shall also stand disposed of accordingly. JUDGE *sandesh Signed by: Mr. Sandesh Waghmare Designation: PS To Honourable Judge Date: 23/09/2026 14:46:50