1 W.P. 4241/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 4241/2011 1 Smt. Sunanda wd/o Arvind Ganjewar, Age : 50 years, Occu. : Household, R/o Old Mondha, Nanded, Tq. and Dist. Nanded. 2 Mahendra s/o Arvind Ganjewar, Age : 26 years, Occu. Business, R/o Old Mondha, Nanded Tq. and District : Nanded. 3 Balaji s/o Arvind Ganjewar, Age : 24 years, Occu. Education, R/o Old Mondha, Nanded Tq. And District : Nanded. ...Petitioners. Versus 1 Suryakant s/o Bhagwan Ganjewar, Age : Major, Occu. Business, R/o Old Mondha, Nanded Tq. And District Nanded. 2 The Secretary, Krishi Utpanna Bazar Samiti, New Mondha, Nanded Tq. and District Nanded. ...Respondents. Mrs. M.A. Kulkarni, Advocate for the petitioners. Mr. Amit Mukhedkar, Advocate for the respondent No.1. CORAM : A.V. NIRGUDE, J. DATED : 18th August, 2011. ORAL JUDGMENT: 1. Heard. There is no need to issue notice to respondent No.2 because he is formal party to the petition. 2 W.P. 4241/11 2. Rule returnable forthwith. By consent of learned counsels for both the sides, the petition is taken up for final hearing. 3. This writ petition filed under Article 226 of the Constitution of India, challenges the concurrent decisions of the Courts below, not to grant an order of temporary injunction as sought by the petitioners in their Regular Civil Suit No. 570/2009. The petitioners are widow and son of one Arvind Ganjewar who happened to be brother of respondent No.1. 4. It is an admitted fact that in the year 1967, there was a partnership firm M/s Madhukar Ganjewar and Brothers, Nanded of which respondent No.1 Suryakant and late husband of petitioner No.1 Arvind were partners amongst other partners. It is also apparent that petitioner No.1’s husband Arvind became partner of this firm in 1974. This was firm dealing in food grains. In the year 1978, apparently this firm, through respondent No.1 partner of the firm, secured lease of 30 years of a plot of land belonging to respondent No.2, which is the suit property. It is almost an admitted fact that after 1978, above mentioned firm conducted its business from this premises and it appears that subsequently the firm was dissolved. It is also an admitted fact that petitioner No.1’s husband Arvind died in May, 2008 but before his death, the lease of the suit plot of land of 30 years given to the firm, expired and respondent No.1 this time, secured renewal of lease of the suit property in his personal name from respondent No.2 and this act on his part went uncontested by the other partners of the above mentioned firm. It also appears that respondent No.1 in the mean time made construction on the suit plot in which he has been conducting his personal business in grains. It is also apparent that the 3 W.P. 4241/11 petitioners are not partners of respondent No.1 at the moment and they have no concern with the business that is being conducted in the suit property. 5. However, the Courts below erred in ignoring the fact that when the suit property was secured and acquired in 1978, it was for and on behalf of the partnership firm. Respondent No.1 had made the application to respondent No.2 as one of the partners of the firm. Apparently therefore, the late husband of petitioner No.1 had proprietary concern to the suit plot. The question as to whether he gave up his right in respect of the suit plot, has not been answered by respondent No.1 as on today. On the contrary, the petitioner placed reliance on lease document of 1978 which shows that respondent No. 1 acquired the plot for and on behalf of his firm in which respondent No.1’s husband was a partner. They also placed reliance on another document which is memorandum of family partition which occurred way back on 23rd October, 1979, between respondent No.1, the late husband of petitioner No.1 and his other brothers and mother. In this document, there is a specific mention that the suit property was an asset of the partnership firm mentioned above and that the property would be divided between the petitioner No.1’s husband on one side and petitioner on the other. This document prima facie establishes that petitioner No.1’s husband had proprietary concern to this plot and when he died, his right apparently got inherited by the petitioners. So, apparently when respondent No.1 made application for renewal of the lease, he ought to have got it renewed in the name of petitioners No.1 and 2 on one hand and he himself on the other. Apparently, he has not been honouring his commitment witnessed by the document 4 W.P. 4241/11 referred to above. Therefore, the petitioners / plaintiffs are entitled to prevent respondent No.1 and his firm from creating third party interest in the suit property. 6. Since the petitioners / plaintiffs are not occupying the suit property, they can not get an injunction in terms of prayer clause ‘D’. So, the writ petition succeeds. ORDER I. Respondent No.1 shall not alienate or create third party interest in respect of the suit plot till disposal of the suit. II. The observations made above are of prima facie nature and shall not influence the learned judge of the trial Court. III. Rule is made absolute. [A.V. NIRGUDE,J.] ts k/2011/August18/wp4241.11/0k