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2007 DIGILAW 1105 (BOM)

Sangita Narendra Tayade v. State of Maharashtra

2007-08-09

A.B.CHAUDHARI

body2007
Oral Judgment. 1. Rule. Heard forthwith by consent of parties. Heard learned counsel for petitioner and learned counsel for the respondents. 2. By the present writ petition, the petitioner who is original defendant no. 5 in the suit, has questioned the validity of the judgment and order dated 13.4.2007 passed by the District Judge, Wardha in Misc. Civil Appeal No. 2 of 2007. By the said judgment and order, the District Judge allowed the appeal filed by respondent no. 5 and issued temporary injunction against the petitioner in respect of part of suit property bearing survey no. 107 (Survey no. 23/4 old). 3. Learned counsel for the petitioner while assailing the impugned order, submitted that the petitioner purchased land admeasuring 0.70 HR out of suit field in a court auction. She has deposited entire auction money and has thus invested her life savings. Learned counsel then submitted that at any rate, the respondent no.3 who is brother of respondent no. 5, has equal share in the suit property and keeping that in mind, the half share which should go to respondent no.5, would be around 0.71 HR. He then argued that since the respondent no.3 failed to pay maintenance amount to his wife, there was order of auction of his estate and the said estate means half share from the aforesaid property. Hence, according to him, no prejudice whatsoever otherwise would be caused to the respondents. 4. Per contra, Mr Deshpande opposed the submission and submitted that on 5.7.1975 the respondent no. 5 purchased the entire suit land under a sale deed though the respondent no.3 is a joint owner as per the said sale deed. The counsel then submitted that as a result of the said conveyance, the respondent no. 5 is in possession of the entire land since then and at any rate, the balance of convenience being in favour of the respondent no. 5, unless the suit is decided one way or the other, it will be wholly inappropriate to disturb the possession of respondent no. 5. He, therefore, prayed for dismissal of writ petition. 5. Having heard the learned counsel for the rival parties, it appears that the respondent no.3 failed to pay the maintenance amount under the orders of the Court to his wife as a result of which the Court ordered auction of his estate for procuring the sale proceeds therefrom. 5. He, therefore, prayed for dismissal of writ petition. 5. Having heard the learned counsel for the rival parties, it appears that the respondent no.3 failed to pay the maintenance amount under the orders of the Court to his wife as a result of which the Court ordered auction of his estate for procuring the sale proceeds therefrom. It then appears that the petitioner purchased half portion of the suit field in the public auction and deposited the entire amount. Mr Malode claims that the petitioner has made improvements in the land. At present, I am not concerned with the said aspect of the matter. Fact, however, remains that the petitioner has invested her life savings and for no fault of her, now she has landed in litigation. If at all the authorities holding public auction have faltered, the Court will take appropriate care while deciding the suit on merit. The petitioner cannot be put to peril because she is a bonafide purchaser in the court auction. Further, I find that at any rate, the respondent no. 3 has had a half share in the property which comes to 0.70 HR. It is true that there is no partition carried out by metes and bounds and as submitted by Mr Deshpande, in the absence of actual partition being carried, it is not possible to allot a share. Even if this be a fact, in the present case incidentally exact half share was sold in the public auction and the petitioner has come into possession thereof. The ultimate dispute will be decided by the Civil Court on its own merits, but looking to the above fact situation, it will be wholly improper to deprive the petitioner of the entire money which she has deposited so also, possession of the suit property which she has purchased in public auction. 6. For all these reasons, the impugned judgment and order is set aside. The petitioner is allowed to retain the portion of property which she purchased in public auction of which she was placed in possession pending disposal of suit. The Trial Court is directed to decide the suit as expeditiously as possible and in any case within one year from today. Rule accordingly. No order as to costs.