1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 6102 OF 2008 Devidas s/o Huna Patil ...Petitioner Versus Sau, Latika Nemchand Lokhande ...Respondent ..... Mr. Amol S. Sawant, advocate for the petitioner ..... CORAM: S. S. SHINDE, J. DATED: 12TH AUGUST, 2009 PER COURT:- 1 This writ petition is filed challenging the judgment and order dated 10.4.2008 passed in Misc. Civil Appeal No. 31 of 2007 by the Ad-hoc District Judge-3, Jalgaon. 2 It is the case of the petitioner that he is original plaintiff and the respondent is the original defendant. The suit property is plot No.50 in survey No. 434/1A admeasuring 3100 sq. ft. situated within the municipal limits of Jalgaon City Municipal Corporation. The said prayer was jointly purchased by the petitioner and respondent by registered sale deed dated 11.3.1974. The petitioner and the respondent became 2 the the owners of the suit property. It was agreed between the petitioner and the respondent that the half portion of the said suit property towards eastern side belongs to the petitioner and remaining half portion towards western side belongs to the respondent. In 1993 the petitioner submitted a plan for the purpose of construction of residential house on the eastern side of the said property. At the time of submission of construction plan with the Municipal Council, signature of respondent was obtained. Accordingly, the Municipal Council has granted permission for construction. 3 It is the case of the petitioner that as per the agreed terms between the petitioner and the respondent and as per the approved construction plan, it was agreed that the petitioner shall construct entire ladder and also bear expenditure for the same. The half portion of the said ladder is upon the property owned by the petitioner and half portion of the said ladder is upon the property owned by the respondent. It was also agreed that when the respondent would construct his house, at that time, the respondent shall pay half of the costs which was incurred for construction of said ladder to the petitioner. 3 4 On 6.2.2007, respondent issued notice in the newspaper for the purpose of sale of western side half potion of the suit property. The petitioner approached the respondent and asked for the amount incurred by the petitioner for construction of ladder. The petitioner had also shown willingness to purchase the half portion of the said plot as per the prevailing market rate. However, the respondent did not pay any heed to the request made by the petitioner. The petitioner instituted R.C.S. No. 59 of 2007, against the respondent for declaration that the petitioner is having right of preemption to purchase the western half portion of the suit property and also prayed that the respondent shall be restrained from selling of half portion of the suit property to any other person except the petitioner. 5 In the said suit, the petitioner filed an application below 6 praying for injunction against the respondent that the respondent be restrained from selling the half portion of the suit property to any other persons except the petitioner. The said application filed by the petitioner opposed by the respondent by filing his say. The trial court allowed the application below Exh.6 wherein the respondent is temporarily restrained from selling of the half portion of the suit property till disposal of the suit. 6 The respondent preferred Misc. Civil appeal No. 31 of 2007 4 challenging the order passed by the trial court in the suit. The lower appellate court allowed the appeal filed by the respondent. Hence, this writ petition. 7 Learned counsel appearing for the petitioner submitted that the petitioner is having right of preemption to purchase the half portion of the suit property, belongs to the respondent, as the said property has jointly purchased by the petitioner and the respondent in the year 1974. It is further submitted that the respondent is also signatory on the construction plan submitted by the petitioner and same was also approved by the competent authority. Hence, there is joint ownership of the petitioner and respondent in respect of the suit property. The petitioner is having right of preemption to purchase the half of the portion of the suit property. 8 Learned counsel further invited my attention to the pleading and grounds in the petition and has submitted that the trial court was right in passing the impugned order and therefore, no interference is called for by the lower court. Though the respondents are served, none appears for them. 9 I have carefully perused the order passed by the District Judge-3, Jalgaon and on careful perusal of the points framed for consideration and reasons given thereon, I am of the considered view 5 that the findings recorded by the lower appellate court cannot be faulted with. The lower appellate court has referred to the terms of the agreement between the parties and recorded that as per the agreement the defendant was supposed to pay half of the expenses towards the construction of staircase at the time of construction of house by the defendant. Admittedly, the defendant has not yet started construction over the supt premises and there is no question of making any payment alleged to have been incurred. The learned Judge, in para 5, has further referred assertion of the petitioner that he has right of preemption and observed that admittedly in the agreement, there is no mention of right of preemption to be exercised by the plaintiff and there is no relationship as such between the parties to right of preemption. Ultimately, by well reasoned order, the appeal filed by the respondent herein came to be allowed. Viewed from any angle, I do not think that this Court, under Article 227 of the Constitution of India, can interfere in the well reasoned order, passed by the lower appellate court. Hence, writ petition is devoid of any merits and the same is dismissed accordingly. Interim relief, if any, stands vacated. *****