: 1 : 4583-09-wp=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4583 OF 2009 Ashlesha Dinesh Samant .. Petitioner v/s. Smt. Manjula Namdev Shinde & Ors. .. Respondents ......... Mr. N.V. Walawalkar, Sr. Advocate i/b V.Y. Sanglikar for the petitioner Mr. S.M. Sabrad for respondent nos. 1 and 2. ......... CORAM : R.Y.GANOO, J DATE : 14th OCTOBER,2011. P.C. : 1. Rule. Rule is made returnable forthwith. Learned advocate Mr. Sabrad appearing on behalf of respondent no.2 waives service. 2. For disposal of this petition, presence of respondent no.3 is not required as the petition challenges the order passed by learned District Judge-I, Mangaon, Dist. Raigad dated 2nd March, 2009 passed in Civil Misc. Appeal No.26 of 2008, which was filed by present respondent nos. 1 : 2 : 4583-09-wp=.sxw and 2. Learned Senior advocate Mr. Walawalkar appearing on behalf of the petitioner pointed out that initially the petition was filed only against respondent nos. 1 and 2. Thereafter, present respondent no.3 Smt. Darpana Dayanand Shirke was joined as respondent no.3 as in the original suit she has been joined as defendant. 3. I have heard learned advocate on both sides. The application at Exh.5 filed by the petitioners was granted by the learned Civil Judge, Junior Division, Roha by order dated 15th September, 2008. Present respondent nos. 1 and 2 challenged the same by filing Civil Misc. Appeal No.26 of 2008. After having heard leaned advocates on both sides, the impugned order dated 2nd March, 2009 is required to be set aside for following reasons. (i) The learned advocate appearing on behalf of respondent nos. 1 and 2 against whom Exh.5 application was filed and in his favour impugned order dated 2nd March, 2009 has been passed, upon instructions from his clients makes a statement that respondent nos. 1 and 2 shall not interfere with the possession of the petitioner. Respondent nos. 1 and 2 admitted that petitioners are in possession . : 3 : 4583-09-wp=.sxw (ii) The another reason in setting aside the impugned order dated 2nd March, 2009 is a development which took place after passing of the impugned order dated 2nd March, 2009 in as much as in the revenue proceedings, which were pending between the parties, the Additional Commissioner, Konkan Division by order dated 2nd June, 2010 set aside the order dated 17th June, 2008 passed by Sub Divisional Officer in RTS/Review/No.4/2008. (iii) It is pertinent to note that learned District Judge while passing order dated 2nd March, 2009 heavily relied upon the findings recorded by the learned Special Divisional Officer vide order dated 17th June, 2008. Now that the order dated 17th June, 2008 is set aside, the conclusion arrived at by the learned District Judge based on that order cannot sustain. 4. The Court is informed that the petitioner has not filed any interim relief application against defendant no.3 Smt. Darpana D. Shirke who is shown as respondent no.3. The learned Senior Advocate Mr. Walawalkar appearing on behalf of the petitioner seeks permission to file an application for interim relief against Smt. D.D. Shirke. I see no difficulty in granting such leave. If the said application is filed, the said application : 4 : 4583-09-wp=.sxw has to be decided on merits. For the reasons mentioned aforesaid, this petition is disposed of by passing following order. ORDER (i) Statement made by learned advocate for respondent nos. 1 and 2 that they shall not interfere with the possession of the petitioner till the disposal of the suit is noted. (ii) Order dated 2nd March, 2009 passed by leaned District Judge-I, Mangaon, Dist. Raigad is set aside and order passed by learned Civil Judge, Junior Division, Roha dated 15th September, 2008 is restored. Liberty is granted to the petitioner to file interim relief application of appropriate nature against the present respondent no.3 Smt. Darpana D. Shirke who is defendant no.3 in the suit. (iii) Certified copy of the order passed by Additional Commissioner, Konkan Division dated 2nd June, 2010 tendered in the course of argument is taken on record. (iv) There shall be no order as to costs. (R.Y.GANOO, J.)