1 WP No.10046/10 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.10046 of 2010 (i) Darshan Kaur Ishar Singh (ii)Gurbachan Singh Ishar Singh ... Petitioners versus (i) Aslina Technical Institute Pvt.Ltd. (ii)Rameshwarnath Vig (iii)Rajindernath Vig (iv)Devindernath Vig (v)Veena Ahuluwalia (vi)Meena Chona (vii)Rameshwarnath Vig (viii)Rameshwarnath Vig ... Respondents ... Mr.G.S. Godbole with Mr.Vishal Kanade for the petitioners. Mr.V.Y. Sanglikar for respondent no.4. CORAM : D.G. KARNIK, J DATED : 10th February 2011 P.C. 1. Heard learned counsel for the parties. 2 WP No.10046/10 2. The writ petition is directed against the interlocutory order and calls for no interference in exercise of an extra ordinary jurisdiction under Article 227 of the Constitution of India. 3. In a suit for eviction, a decree was passed in favour of the owners. The petitioners filed an appeal against the owners. In the appeal, the present respondent no.1 made an application for joining him as a party on the ground that he had purchased the property from the owners. That application was allowed by the appellate court. That decision is impugned in the present writ petition 4. Learned counsel for the petitioners submitted that the respondent no.1 is not a purchaser of the property and he had not produced sufficient evidence before the appellate court to show that he had purchased the property. The legality, validity or existence of alleged document of transfer was also challenged before the appellate court. The said challenge is repeated before me. In that connection, the appellate court has observed “so far as legality or validity and existence of alleged document is concerned, the same can be taken into consideration while deciding the matter on merits.” The objection that as to whether the present respondent no.1 has really stepped into the shoes of the decree holder is kept open to be decided at the time of the hearing of the appeal. Therefore, in my view, the impugned order does not affect any substantive right of the petitioners requiring any interference at an interlocutory stage. 3 WP No.10046/10 5. If the owners have really transferred the property in favour of respondent no.1, the original owners would not be interested in defending the appeal. It is the respondent no.1 who would really be interested in defending the appeal and supporting the decree for eviction. If he is not joined as a party to the appeal, it is he who is likely to suffer prejudice. In this view of the matter also, no interference is called for in exercise of an extra ordinary jurisdiction. 6. Learned counsel for the petitioners then submitted that in an application for determination of mesne profits filed by the original owners after the decision of the suit an application was made by the respondent for joining him as a party but the same was not granted and that decision has become final. Under section 54(4) of the Transfer of Property Act, in the absence of contract to the contrary the seller is entitled to recover rent upto the date of transfer. As the original owners were entitled to recovery rent/mesne profits upto the date of transfer, prima facie, the respondent purchaser could not claim it when the application for mesne profits was made. Hence, the order passed in the application for determination of mesne profits would be no bar for joining the respondent as party to the appeal. In any event what is the effect of that order can be considered by the appellate court at the time of hearing of the appeal. All contentions which may be raised by the petitioner before the appellate court would be considered in its own merits. With this observation, writ petition is rejected summarily. (D.G.KARNIK, J)