1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CIVIL APPLICATION NO. 6660 OF 2009 IN FIRST APPEAL ST. NO.13518 OF 2009 Balu Rajbhau Nalawade ....Applicant. Versus Jija Yadavrao Nalawade & others ....Respondents. Shri. N.C. Garud, Advocate for the applicant. Shri. S.R. Choukidar h/f. Shri. N.B. Narawade, Advocate for the respondents No. 3. CORAM : R.K. DESHPANDE, JJ. DATE : 10th August, 2009 PER COURT : 1. Heard the learned counsel Shri. Garud and Shri. S.R. Choukidar holding for Shri. N.B. Narawade for respondent No. 3. 2. Although notice of this civil application is served upon the respondent Nos. 1 and 2, no reply is filed on behalf of the respondents on this application of stay. 3. The present appeal challenges the judgment and decree dated 8.8.2006 passed by the learned Joint Civil Judge, Senior Division, Aurangabad in Special Civil Suit No. 267 of 2003. It was the suit for partition and separate possession of the agricultural land to the extent of 2 2/3 share of the plaintiffs and for declaration that the sale deeds bearing day book Sr. No. 157 and 158 dated 15.1.2002, executed by one Shantabai in favour of the defendant No. 2, who is appellant in this appeal, in respect of the suit lands are null and void and not binding upon the plaintiffs. The trial Court has declared that the plaintiff Nos. 1 and 2 and the defendant No. 1 shall have 1/3 share each in the suit properties. It has further directed that the partition of the suit properties be effected and the plaintiffs be put in possession on 1/3 share each in respect of the suit properties. The sale deeds bearing day book Sr.No.157 and 158 dated 15.1.2002, executed by Shantabai in favour of defendant No. 2 (appellant herein), in respect of the suit lands are also declared as null and void and not binding on the rights of the plaintiffs. The appellant/defendant No. 2 is perpetually restrained from alienating the suit properties in any manner or creating third party interest over the suit properties till the plaintiffs receive their respective share. It has further directed to effect partition of the suit properties through Collector as per section 54 of the Code of Civil Procedure. 4. The applicant has stated in para 6 of the application that he is in actual possession of the property which was the subject matter of sale deed dated 15.1.2002 executed by Shantabai his favour. He has further stated that he has not handed over the possession of the suit properties till this date. The applicant apprehends that upon partition and separate possession as per the decree passed by the trial Court, he may loose the 3 possession over the property and therefore, by this civil application, he is praying for stay to the effect, operation and execution of the decree in question. 5. After hearing the learned counsel for the appellant and the learned counsel for the respondent No. 3, I am of the view that at present, the possession of the applicant over the suit properties, covered by the sale deeds bearing day book Sr.No. 157 and 158 dated 15.1.2002 needs to be protected upon a condition that the appellant shall furnish an undertaking before this Court that he shall not alienate the suit properties in any way or create third party interest, till further orders by this Court in the instant appeal. So far as remaining part of the decree is concerned, the Collector may proceed with the further proceedings of the partition, except the delivery of possession of the properties, subject matter of the sale deed dated 15.1.2003. 6. After the proceedings before the Collector are completed, the parties shall at liberty to move this Court for appropriate orders. In view of this, the civil application stands disposed of. Undertaking be filed within 10 days from today. [ R.K. DESHPANDE, J. ] ssc/ca6660.09