JUDGMENT - KHANDEPARKAR R.M.S., J.:---Heard learned Advocate for the petitioners.

Rule. By consent, the rule is made returnable forthwith.

2. The petitioners challenge the order passed by the lower Appellate Court on 29-7-2002 in Misc. Civil Appeal No. 15/2002 whereby the lower Appellate Court has dismissed the appeal while directing the Court below to dispose of the main suit as early as possible. The said appeal was filed by the petitioners against the order of the trial Court dated 11-3-2002 whereby the petitioners were restrained from transferring the suit land or any portion thereof to any third person or to create any third party right on the suit land till disposal of the suit.

3. Upon hearing the learned Advocates and on perusal of the record the only point which arises for consideration in the matter is whether during the pendency and disposal of the suit, the Courts below could have restrained the petitioners from alienating the suit land in view of materials placed on record disclosing disposal of property to the extent of 1/3rd share by the father of the plaintiffs during his life time, while there being no dispute between the parties that the share of the father of the plaintiffs in the joint family property was to the extent of 1/3rd?

4. Undisputed facts are that the plaintiffs are illegitimate sons of the late Maruti through whom they claimed right to the joint family property. It is also undisputed fact that during the life time of Maruti, he had disposed of about 5 hectors of land out of the joint family property and total area of land of joint family property was about 15 hectors. It is the case of the petitioners that there was partition in the year 1964 which has been seriously disputed by the respondent/plaintiffs. However, the fact remains that out of the total area of the joint family property, Maruti was entitled only to the extent of 1/3rd share and during his life time had already disposed of an area of about 5 hectors of land out of the joint family property. In the background of these facts, it is the contention of the petitioners that even assuming but without admitting that there was no partition of the joint family property, Maruti having disposed of the area which could have been allotted to his share and the respondents/plaintiffs being illegitimate son could not have claimed any right or interest during the life time of Maruti and their interest having accrued in their favour subsequent to the death of Maruti and simultaneously the petitioners having acquired the property for lawful consideration there was no prima facie case made out to restrain the petitioners from alienating the suit property. It is not in dispute that the suit property which is acquired by the petitioners was, once upon a time, forming part of joint family property and late Maruti had 1/3rd share in the said joint family property and was purchased by the petitioners from Maruti. The argument on behalf of the petitioners is sought to be countered by the learned Advocate for the respondents by placing reliance upon the decision in the earlier suit between the parties viz. R.C.S. No. 174/90 and the judgment of the Appellate Court therein in Civil Appeal No. 77/93. It is the contention of the learned Advocate for the respondents that the said suit was filed for partition by the plaintiffs herein against the petitioners and their father who was alive at the relevant time. The suit however, was dismissed on the ground that the respondent/plaintiffs being illegitimate sons were not entitled to claim any right or interest in the coparcenary property during the life time of the father. In the appeal being Civil Appeal No. 77/93 the said finding was confirmed. However, the Appellate Court has also held that there was no partition of the property as was sought to be claimed by the defendants in the said suit who are the petitioners herein.

5. There is no doubt that the judgment in the said Appeal No. 77/93 was not subjected to second app

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