1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6894 OF 2006 1.Shri.Dhanaji Jagu Navatre & anr. ...Petitioners. vs. 1.Bapu Sukhdev Navatre & ors. ...Respondents. --- Mr.G.N.Salunkhe with G.C.Sawant, for Petitioners. Mr.D.S.Mhaispurkar i/b. Ms.Vaidehi Mhaispurkar,for Respondents 1 to 3. --- CORAM: D.K.DESHMUKH,J. DATED: 25th April,2008. P.C.:- 1. Rule returnable forthwith. Heard finally by consent of parties. 2. By this petition, the petitioners challenge 2 the order passed by the Trial Court directing the defendants to pay Rs.1000/- per month each to the plaintiff nos.1 to 3 as maintenance. The plaintiff nos. 1, 2 and 3 have filed suit for a decree of partition. According to the plaintiffs, plaintiff nos. 1 and 2 are the children and plaintiff no.3 is the wife of defendant no.3 Sukhdev. According to the plaintiffs, they have share in the joint family property in the hands of their Father and his brothers. In that suit, an application was filed for an interim order of maintenance. The defence of the petitioners-defendants was that the entire property mentioned in the plaint is not a joint family property and some of it is self acquired property. It was also their claim that there was no profit made from the land because it is a dry crop land, still the Trial Court has made order directing the defendants to pay maintenance. 3. I have heard the learned Counsel appearing for both the sides. Perusal of the order of the trial Court shows that the Trial Court has not recorded prima facie finding as to what is the extent of joint 3 family land and what is the share of defendant no.3 in that land. He has also not recorded prim facie as what is the income from that land. There can be no debate that the defendant no.3 is liable to pay maintenance to his wife and children. In fact, an order has been made under Section 125 of Criminal Procedure Code for payment of maintenance. But to make an order of maintenance against his father and brothers, it is absolutely necessary that at least prima facie finding is recorded that they are in possession of the land in which the defendant no.3 has share and they are earning profit from that land. Without recording that finding the Trial Court could not have made the order for payment of maintenance to the plaintiffs. The order of the Trial Court is therefore, liable to be set aside. 4. In my opinion, in the facts and circumstances of the case, the following order would meet the ends of justice:- The order impugned in the petition is set aside. The application for maintenance at Exhibit 35 on record of the Trial Court is remitted back to the 4 trial Court for consideration and decision in accordance with law. The Trial Court shall dispose of the application as expeditiously as possible in any case within a period of three months from the date on which writ of this petition is received. The amount of Rs.12,000/- has been deposited by the petitioners in this Court. The office of this Court shall transfer the amount to the Trial Court. The amount shall be kept invested by the Trial Court pending the decision on the application. The trial Court shall make appropriate orders in relation to the disposal of that amount while disposing of the application for maintenance. Rule is made absolute accordingly. No order as to costs. --- 5 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.229 OF 2008 IN WRIT PETITION NO.6894 OF 2006 1.Bapu Sukhdev Navatre & ors. ...Applicants/ (orig.Respondents.) VS. 1.Shri.Dhanaji Jagu Navatre & anr. ...respondents/ (orig.Petitioners.) --- Mr.D.S.Mhaispurkar i/b. Ms.Vaidehi Mhaispurkar,for Applicants/ orig.Respondents 1 to 3. Mr.G.N.Salunkhe with G.C.Sawant, for Respondents/ orig.Petitioners. --- CORAM: D.K.DESHMUKH, J. DATED: 25th April,2008. P.C.:- 6 In view of the order passed in the writ petition no.6894 of 2006 on 25.4.2008, this civil application does not survive for consideration, hence, disposed of. ---