((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.163 OF 2008 WITH CIVIL APPLICATION NO.202 OF 2008 IN APPEAL FROM ORDER NO.163 OF 2008 Runja Lalxman Lokhande Appellant versus Manisha Kantilal Chopra and others Respondents Mr.S.K.Shinde i/by Sagar Kasar for the appellant. Mr.M.S.Karnik for respondent no.1. Mr.P.N.Joshi for respondent no.2. Mr.Sanjeev P. Kadam for respondent no.3. Mr.Bharat Mehta, AGP for respondents 4, 5, 6, 8 and 9. Mr.Jaydeep Pawar for respondent no.7. CORAM : SMT.R.P.SONDURBALDOTA, J. DATE : 09th July 2008 PC : 1. Rule. Rule returnable forthwith. All the respondents waive service of notice. The appeal is taken up for hearing forthwith. Heard submissions on behalf of the appellant and the respondents. 2. The appellant who is the original plaintiff ((-2-)) in Special Civil Suit No.174 of 2007, prefers the instant appeal against an interim order dated 9th November 2007 passed by the learned Trial Judge rejecting the application. The respondents are the original defendants. The facts giving rise to the instant appeal are as follows. The appellant is the brother of respondent nos.2 and 3. He filed the suit for partition of joint family property being the property described at paragraph 1 of the plaint. It is an undisputed fact that the appellant, respondent nos.2 and 3 and their mother (deceased Yamunabai) had executed a development agreement dated 24th September 1997 in favour of respondent no.1 for the total consideration of Rs.53.00 lakhs. Out of that, the family had received the consideration to the extent of Rs.47.00 lakhs. Thereafter, vide "possession receipt" dated 30th September 1997 possession was delivered to respondent no.1 of survey nos.43/2 and 44/1/3A/2. Since then, the respondent no.1 has been in possession of the land till date. It appears that thereafter there was some dispute between the appellant and other family members. Therefore, on 26th March 1999, other family members executed one more development agreement in favour of ((-3-)) respondent no.1 in respect of a portion of the same property which has fallen to their share. 3. Mr.S.K.Shinde appearing for the appellant submits that respondent nos.2, 3 and their mother executed second development agreement in respect of a portion of the entire land. This amounts to partition of the joint family property behind the back of the appellant. Such partition is not permissible. Therefore, the respondents cannot be allowed to proceed with their second development agreement. Since the appellant has filed suit for partition, it is necessary that the appellant is protected by an interim order restraining the respondents from creating any third party rights in respect of the suit property. Mr.Shinde submits that otherwise when the suit is taken up for final hearing after some years and if the appellant succeeds in the suit, there will be no property available for partition. 4. Mr.M.S.Karnik appearing for respondent no.1 submits that this is a third attempt on the part of the appellant to obtain some interim relief in respect of the suit property. The appellant has not disclosed the earlier ((-4-)) proceedings filed in respect of the agreement and the suit property including the suit for partition filed by wife of the appellant. Mr.Karnik has taken me through the copies of the plaints in the suits as also the interim orders passed therein. 5. The first litigation pointed out by Mr.Karnik is Regular Civil Suit No.850 of 1999 filed by respondent no.3, the sister against the appellant, respondent no.2 and their mother Yamunabai for partition, possession and injunction in respect of several properties including the suit properties. The State of Maharashtra and some Government officers were also made party defendants thereto. The suit ended in a compromise decree after names of the appellant and defendant nos.5 to 20 were deleted from the proceedings. Even if the appellant was deleted from the proceedings, he cannot deny knowledge of the compromise decree. 6. Sunita w/o the appellant had filed a suit being Special Civil Suit No.160 of 2001 alongwith three minor children seeking partition of the suit property and a share therein as a family member of the appellant. ((-5-)) Respondent no.1 herein was joined as defendant no.4 to the suit. In that suit, an application for interim reliefs was made in almost the same terms as the application made in the present proceedings. The Trial Court had rejected the application with an observation that it was a collusive suit filed. The said order was taken to the High Court by way of Appeal From Order No.553 of 2002. The said appeal was disposed off by order dated 10th March 2004, a copy whereof is produced by Respondent no.1, which specifically refers to the observations of the Trial Court to the effect that the suit which is filed is a collusive suit and it has been filed at the behest of defendant no.1. It is also observed in the said order that there has been no interim order running against respondent no.1 herein since the year 2001. With these observations the Appeal From Order No.553 of 2002 was dismissed with a direction that the suit be disposed of expeditiously. It appears that thereafter the said suit was dismissed for default. Mr.Shinde appearing for the appellant, however, states that subsequently an application was made for restoration of the suit and the suit is restored to file. ((-6-)) 7. Mr.Karnik next points out that the appellant himself had filed a suit being Regular Civil Suit No.25 of 2001 in the Court of Civil Judge, Junior Division, Nashik for a declaration that the General Power of Attorney executed by the appellant along with the development agreement dated 24th September 1997 stands cancelled and for a declaration that any actions taken by the respondent no.1 pursuant to the General Power of Attorney are not binding upon the appellant. In that suit, the appellant had filed an application for interim reliefs claiming to be in possession of the suit property; and praying that the possession should not be disturbed by respondent no.1 in any manner. When the appellant could not succeed in getting interim relief in the matter, he filed an application dated 3rd May 2001 seeking to withdraw the suit with liberty to file a fresh suit on the same cause of action. A xerox copy of the application is at page 183 of the compilation filed by respondent no.1. It shows that the suit was sought to be withdrawn for the ostensible reason that several orders passed under Urban Land Ceiling Act in respect of the said properties are ((-7-)) required to be challenged by filing appropriate proceedings. The application for withdrawal was allowed by the Trial Court an the suit came to be withdrawn on 22nd June 2001. Since then, the appellant has not taken any steps in the direction except filing of the instant suit in the year 2007. The explanation forthcoming for the inaction is that the applicant was required to face several litigations including the litigation initiated by his wife and his sister. It has already been seen that the proceedings filed by the wife of the appellant were collusive proceedings filed at his own behest. Hence, I find no substance in the reason given. Mr.Shinde then submits that the observations of this Court in Appeal from Order No.553 of 2002 should not carry much weight because those are the prima facie observations. The submission must be rejected since present stage is also an interim stage where prima facie view of the matter is required to be taken. Further, the appellant has not brought any material to show that the observations made were not justified. 8. I have perused the impugned order. It correctly appreciates all the facts of the ((-8-)) case. The learned Trial Judge has observed that the appellant has not come to the Court with clean hands. He is also guilty of laches which are not explained. In the circumstances, no interference is required with the impugned order. The Appeal from Order is dismissed accordingly. In view of dismissal of Appeal from Order, Civil Application No.202 of 2008 does not survive and stands dismissed accordingly. (SMT.R.P.SONDURBALDOTA, J.)