1 W.P. 3634/2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 3634/2011 1 Ganpat Bhaguram Jadhav, Age : 56 years, Occu. Agril. 2 Tukaram Ganpat Jadhav, Age : 32 years, Occu. Agril. Both R/o Nirpana, Taluka Ambajogai, District Beed. ..Petitioners Original defendants. Versus 1 Kalinda w/o Ramrao Jadhav, Age : 51 years, Occu. Household, R/o Nirpana, Taluka Ambajogai, District Beed. ...Respondent. Original Plaintiff. Mr. S.S. Deshmukh, Advocate for the petitioner. Mr. J.R. Patil, Advocate for respondent sole. CORAM : A.V. NIRGUDE, J. DATED : 11th July, 2011. ORAL JUDGMENT: 1. Rule. Rule is made returnable forthwith. 2. By consent of learned counsel for both parties, the petition is taken up for final hearing. 3. Heard. 4. This writ petition challenges the interim order dated 03/05/2011 passed by learned Adhoc District Judge-1, Ambajogai, below Exh.5 in Misc. Civil Appeal No. 20/2011. 5. The facts leading to this order in short can be stated as under. The petitioners are the defendants in R.C.S. No. 135/2010. The case of the respondent / plaintiff in short was that she purchased the suit land from one Vishnu in the year 2004. It was the out right sale and she was put in possession. She admitted that the suit land originally belonged to the petitioner, who had sold it to Vishnu her vendor way back in year 2001. She said, even that transaction was 2 W.P. 3634/2011 out right sale. But on 28/06/2010 she said, she received a notice from the petitioners / defendants claiming that she was the mortgagee in respect of the suit land and he would redeem the land by paying the amount of loan. Thereafter, there occurred an incident of violence on 6th July, 2010, indicating that both the parties were trying to physically control the suit land. 6. Immediately thereafter on 12/07/2010, this suit was filed. The respondent / plaintiff came with the case that she is in possession. All the record stood in her favour. She could show title as well as possession at prima facie stage and so the petitioners / defendants should be injuncted from interfering her possession. However, at the interim stage, learned judge of the trial Court did not accept her case because the defendants had not submitted their case. He therefore, directed the parties to maintain status quo, without expressing his view, as to who could be in possession of the land. He did not express clearly in his order that the respondent / plaintiff was in possession. This ambivalent order continued for some time and thereafter, the learned judge of the trial Court after hearing both sides, came to conclusion that prima facie respondent / plaintiff could not show possession and he refused to pass order in her favour. Her application seeking temporary injunction, thus was rejected. 7. She went in appeal and thereafter, the impugned order was passed. This time, the learned judge of the appeal Court for the first time held that the record would indicate prima facie that the respondent / plaintiff was in possession. This order is thus the bone of contention between the parties. 8. I am not inclined to express my view on the question as to who 3 W.P. 3634/2011 is in possession of the land. However, I am not favouring continuation of the impugned order. 9. My reason is rather tactical and is not based on merits of the case. I am of the view that despite filing of the suit in July, 2010 the respondent / plaintiff did not get any protective order in her favour. As such, the order passed by trial Court on 14/07/2010 was ambivalent and did not actually protect the respondent / plaintiff. So, instead of passing the impugned order, the learned judge of the appeal Court ought to have decided the appeal itself. It is pertinent to note that after the order on 14/07/2010 was passed, the parties some how remain inert and did not resort to violence. So, the impugned order deserves to be set aside. ORDER Rule is made absolute. The order passed by learned Adhoc District Judge-1, Ambajogai, on 3/05/2011 below Exh.5 in Misc. Civil Appeal No. 20/2011 is set aside. The learned Adhoc District Judge shall decide the appeal within two weeks from the receipt of this order. The parties shall communicate this order to the learned judge. The parties are allowed to act upon copy of this order duly authenticated by Sirastedar of this Court. [A.V. NIRGUDE,J.] ts k/2011/July11/wp3634.11/ok