1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.370 OF 2010. Sau. Rukminibai Rangnath Sonawane Aged 64 years, Occ.Agril., R/o Vadgaon, Tq.Kopargaon, Dist. Ahmednagar, through General Power of Attorney holder Sukhdev S/o Rangnath Sonawane, Aged 49 years, Occ.Agril., R/o Vadgaon, Tq.Kopargaon, Dist.Ahmednagar ... Petitioner. Versus Bhimraj S/o Somnath Bargal and others. ... Respondents. ... Mr.R.A.Tambe, advocate for the petitioner Mr.C.K.Shinde, advocate for Respondent Nos.1 to 3 and 6. Mr.V.D.Hon, advocate for Respondent Nos.7A, 7B, 8 and 9. Mr.D.R.Kale, A.G.P. for Respondent No.10. ... CORAM : V.R.KINGAONKAR,J. Date : 09.02.2010. 2 PER COURT 1. Heard counsel. 2. The petitioner is purchaser of one of the agricultural land bearing Gat No.182 which is subject matter of partition decree rendered by the learned Civil Judge (S.D.), Kopargaon on 5.1.1995 in Civil suit bearing RCS No.196/1990. The Respondent Nos.8 and 9 are original plaintiffs of that suit. The Respondent Nos.3 and 4 are original defendant Nos.1 and 2. The Respondent No.1 was the original defendant No.5 in that suit. The petitioner claims to have purchased the said agricultural land from the present Respondent Nos.1 and 2. The petitioner alleges that the land was purchased on 16.8.2002. It is pertinent to note that the suit for partition and separate possession was decreed on 5.1.1995 with specific direction that the original defendant Nos.1,2,3 and 5 shall not alienate the suit property until the partition is effected. Thus, by the final order of the Civil Court, injunction was clamped against them from transferring the land in question. Needless to 3 say, the petitioner purchased the land in breach of such terms of the final order and though the vendors were not legally entitled to transfer the said land, yet, they transferred their undivided share in favour of the petitioner. 3. The partition decree attained finality and was put to execution by the original plaintiffs i.e. the Respondent Nos.8 and 9. The land in question along with other properties, including other parcels of the lands were measured and the shares were demarcated by the competent authority as provided U/s 54 of the Code of Civil Procedure. The Respondent Nos.3 and 4, challenged the manner of partition by filing Writ Petition No.6924/2009. The petition was allowed by this Court with direction to hear the parties before preparing final chart regarding division to be effected. This Court held that the partition must be effected as per Rules 7 and 9 and Section 85 of the MLR Code. The partition decree was directed to be executed in accordance with the relevant Rules. The SDO, Sangamner heard the concerned parties and 4 prepared the relevant proposal in tabular form for the purpose of effecting the partition. The petitioner moved the learned SDO by filing an application dated 27.11.2009, alleging that she had developed the purchased 59 Ares land out of Gat No.182 and that she may be protected by effecting equitable partition. She urged to prepare the partition schedule after hearing her. Her request was rejected by the learned SDO, Sangamner. She challenged the said communication and the manner of effecting the partition on the ground that she is entitled to seek equities during course of partition. By way of ad-interim relief, this Court directed that the competent authority may give hearing to the petitioner before finalisation of the chart for partition. 4. The grievance of the petitioner is that she was not heard and the final decision is rendered by the competent authority regarding the partition of the said land. 5. Clinching question is as to whether the petitioner has any right to raise objection 5 regarding division of the lands in the course of partition. Mr.Tambe, learned counsel would submit that though the petitioner is a subsequent purchaser, yet, her interest may be protected by adjustment of equities while effecting the partition. He relied upon certain observations in "Khemchand Shankar Choudhary and another Vs. Vishnu Hari Patil and others" AIR 1983 Supreme Court 124. The Apex Court observed that the position of transferee pendente lite is somewhat similar to the position of an heir or a legatee of a party who died during pendency of the suit or proceedings, or an official receiver who takes over the assets of such a party on his insolvency. It is observed : "Similarly in the case of transferees pendente lite also, if there is no dispute, the Collector may proceed to make allotment of properties in an equitable manner instead of rejecting their claim for such equitable partition on the ground that they have no locus standi. In any such case 6 where there is no dispute if the Collector makes an equitable partition, he would neither be violating the decree for transgressing any law." 6. In "Sanjay Varma Vs. Manik Roy and others" 2007 AIR SCW 1490 the Apex Court held that transfer made by defendant, during pendency of the suit, without leave of the Court will not entitle such transferee to seek impleadment. The Apex Court observed : "10. In Bibi Zubaida Khatoon's case (supra) on which learned counsel for respondents had placed reliance in fact goes against the stand of the respondents. Though a casual reading of paragraph 9 supports the stand taken by the respondents, it is to be noted that the factual position was entirely different. In fact a cross suit has been filed in the suit in that case. Respondents being 7 transferees pendente lite without leave of the Court can not as of right seek impleadment in the suit which was in the instant case pending for a very long time. In fact in para 10 of the judgment this Court has held that there is absolutely no rule that the transferee pendente lite without leave of the Court should in all cases contest the pending suit. In Sarvinder Singh V. Dalip Singh and others (1996 (5) SCC 539) it was observed in para 6 as follows : "6. Section 52 of the Transfer of Property Act envisages that : "During the pendency in any court having authority within the limits of India... of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to 8 the suit or proceeding so as to affect the rights of any other party thereto under the decree or order which may be made therein, except under the authority of the court and on such terms as it may impose." It would, therefore, be clear that the defendants in the suit were prohibited by operation of Section 52 to deal with the property and could not transfer or otherwise deal with it in any way affecting the rights of the appellant except with the order or authority of the court. Admittedly, the authority or order of the court had not been obtained for alienation of those properties. Therefore, the alienation obviously would be hit by the doctrine of lis pendens by operation of Section 52. Under these circumstances, the respondents can not be considered to be either necessary or proper parties to the suit." 9 7. Considering the foregoing observations of the Apex Court, it is manifest that such adjustment of equities can be made where there is no dispute about the rights of transferee. In the present case the petitioner purchased the undivided share of the original defendants notwithstanding the fact that there was injunction clamped by the Court against them to transfer any of the property. Needless to say, the petitioner could not be regarded as a bonafide purchaser. One who commits breach of the directions of the Court does not deserve any equity. Mr.Tambe, submitted that the petitioner is a bonafide purchaser but prima facie it does not stand to reason and ultimately final finding is rendered on this issue by the Civil Court, after due trial, in the suit. Obviously, the petitioner is not merely a transferee pendente lite but is prima facie not a bonafide transferee. Mr.Tambe, has pointed out that already the petitioner has instituted a suit against her vendor. The remedy of the petitioner is to seek appropriate compensation against the 10 vendors or to be satisfied with the part of the land which is allotted to the vendor out of the alienated property and to claim compensation if any. Considering these aspects of the matter, the petitioner has no locus to intervene in the process of partition and, therefore, the division made by the Collector can not be challenged by her. 7. For the reasons aforestated, the petition is destitute of substance and as such is dismissed. (V.R.KINGAONKAR,J.) asp/office/wp37010