1 wp7849.10 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 7849 OF 2010 Rangnath S/o Mahadeoappa Ashtekar (Died through legal heirs) 1/1. Kamlakar S/o Rangnath Ashtekar and others ..PETITIONERS -VERSUS- Sow. Sumanbai W/o Ramgopal Biyani and others. ..RESPONDENTS ..... Mr. H.V. Patil, Advocate for petitioners. Mr. S.G. Chapalgaonkar, Advocate for respondent no.1. Mr. D.R. Korde, A.G.P. for respondent nos. 5 and 6. ..... (CORAM : B.P. DHARMADHIKARI, J.) DATED : 19TH APRIL, 2011. PER COURT : 1. Heard Advocates Mr. Patil for petitioners, Mr. Chapalgaonkar for respondent no.1 against whom the petitioner had sought interim relief and learned A.G.P. 2. Petitioner has filed Regular Civil Suit no. 121 of 1969 for recovery of possession on the basis of title. The present respondent no.1 is added as defendant no.7 in that suit. Contention of the petitioner is that the said defendant no.7 is in possession of the plot no. 77 from field survey no. 438 which forms subject matter of suit. 2 wp7849.10 3. Trial Court granted him temporary injunction and restrained the respondent no.1 from creating third party interest. Respondent no.7 then filed Misc. Civil Appeal vide 14 of 2009 and in it, the Court of Adhoc District Judge-1, Gangakhed delivered the judgment on 13th July, 2010 holding that property purchased by respondent no.1 was from survey no. 439 and it has got nothing to do with survey no. 438. With result, it has allowed the appeal. 4. Advocate Mr. Patil states that this conclusion drawn by appellate Court is erroneous in as much as the prima facie perusal of the plaint map itself reveals the location of plot no. 77 and same is therefore in survey no. 438. According to learned Counsel for respondent no.1, the plaint map itself is not correct. 5. The property in possession of the respondent no.1 is distinct and identified separately. He has purchased that property as a part of survey no. 439. Whether it is part of survey no. 438 or not is disputed question. Trial Court has gone by stipulation in sale deed. 6. Even if the respondent no.1 dispose of the said plot, the said sale shall be subject to outcome of Regular Civil Suit no. 121 of 1969 because of principles of lispendence. However, interest of the 3 wp7849.10 present petitioner can be protected further by directing the respondent no.1 to include in sale deed to be executed in favour of any third person an express stipulation about the same and in relation to pendency of Regular Civil Suit no. 121 of 1969. Respondent no.1 shall also give intimation to trial Court before entering into any such transaction. 7. Appellate judgment dated 13th July, 2010 is modified only to that extent. Writ Petition is partly allowed. No costs. (B.P. DHARMADHIKARI) JUDGE gas/wp7849.10