ao14.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPEAL FROM ORDER NO. 14 OF 2011 Bhaskar Shrimant Rohakale .. APPELLANT VERSUS Shrimant Amrut Rohakale & others .. RESPONDENTS Mr. N.C. Garud, advocate for the appellant. Mr. N.V. Gavare, advocate for respondent nos. 1 to 5. ===== CORAM : R.M. BORDE, J. DATE : 17 th MARCH, 2011. PER COURT : 1 An application tendered by the appellant / original plaintiff seeking restraint order against the defendants restraining them from creating third party interest in respect of the suit property has been turned down by the trial court in view of order passed on 6-1-2011. ao14.11 2 2 Appellant / original plaintiff instituted suit bearing Special Civil Suit no. 206/2010 claiming decree of partition and separation of share in respect of land gat no. 63. Plaintiff also claims that the sale-deed effected by defendant no. 1 in favour of defendant no. 4 on 6-2-2010 be declared as illegal and not binding on him. Plaintiff also claims that defendant no. 4 be restrained by an order of injunction from creating third party interest in relation to the suit property. 3 Plaintiff is the son of defendant no. 1 whereas defendant no. 2 is his mother and defendant nos. 3 and 4 are his brothers. It is the case of the plaintiff that during partition effected in the year 1997, all other family properties were partitioned except the suit land. There was some litigation in respect of the suit land and it was decided that after settlement of dispute the disputed property be partition, however, defendant no. 1 has alienated the property in favour of his another son. As such, plaintiff has instituted the suit. 4 Defendants contend that the disputed land gat no. 63 is kept aside for maintenance of father – defendant no. 1 and he is entitled to continue with the possession and is also entitled to deal with the property. It is the ao14.11 3 contention of defendants that defendant no. 1 has rightly alienated the disputed land. It is the prayer of plaintiff that an equitable order may be passed to the effect that defendants shall not create third party interest during the pendency of the suit. 5 I have considered the submissions advanced by both the parties. I am of the opinion that all the parties who claim to have interest in the property are before the court. All the defendants have notice of the litigation and as such are precluded from creating third party interest during continuance of the litigation. In view of section 52 of Transfer of Properties Act, defendants are not entitled to create third party interest and, if such third party interest is created, it would be subject to provisions of section 52 of the Act. Apart from this aspect, even if plaintiff has any apprehension, he may register the lis as provided by section 52 of the Act, in its applicability to the State of Maharashtra, with the registering authority. In any eventuality, in view of lis pendens, defendants are not entitled to create third party interest and, even if such third party interest is created, it will not affect the right, title and entitlement of plaintiff. In such circumstances, in view of the observations made above, no interference is called for in the appeal from order. Appeal from order stands disposed of. ao14.11 4 6 Pending civil application, if any, does not survive and stands disposed of. ( R. M. BORDE ) JUDGE dyb