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Judgment
N.A. Britto, J.—Heard. This is defendants'' Writ Petition and is directed against Order dated 9-12-2009 in R.C.S. No. 92/2009 by which Defendants application dated 16-7-2009 has been rejected. It appears that the predecessors in title of the plaintiffs and the defendants acquired rights to the suit property in Inventory Proceeding bearing No. 47/90. Thereafter, there was a partition deed dated 12-10-1993 made between them. Plaintiffs claimed that by virtue of the said partition deed the Defendants got plot A admeasuring 570 sq. meters including the portion of the residential house coloured in red stripes in the said plan and which constituted the northern portion of the property allotted to the defendants and portion B admeasuring 458 sq. meters along with the portion of the residential house and which constitutes the southern portion of the property was allotted to Joaquim Luis Gonzaga Pereira and others(predecessors in title of the plaintiffs) more specifically stated in the said deed of partition.
The portion marked under letter ''T'' was considered as an open space and the common walls, roofing and wood work was to be maintained jointly.
The residential house which was divided into two portions was separated only by a common wall which belonged to both the parties and both the parties had a right to support the said wall and neither the plaintiffs nor the defendants had a right to demolish any portion of the wall dividing the two houses.
The plaintiffs appear to have purchased the said portion ''B'' admeasuring 458 sq. meters of survey No. 113/7 and portion ''D'' admeasuring 112.50 sq. meters of survey No. 112/5 along with a portion of the house bearing No. 1/93 by virtue of a sale deed dated 14-3-2006 for a sum of Rs. 8,00,000/-. The defendants have admitted the said position in para 3 of their written statement although in the counterclaim it is stated by them that despite the deed of partition the suit property was not divided by metes and bounds between the predecessors in title of the plaintiffs and the defendants. It appears that the defendants are now interested to purchase, the properties purchased by the plaintiffs by deed dated 14-3-2006 and with that view in mind the defendants filed the said application dated 16-7-2009 purporting it to be an application u/s 4 of the Partition Act r/w Section 44 of the Transfer of Property Act and with a prayer for permission to deposit the sale price of Rs. 8,00,000/-for which the plaintiffs had purchased their portions.
The said application came to be dismissed by learned trial Court by Order dated 9-12-2009 stating that the defendants had no right, title or interest in the subject matter of the sale deed dated 14-3-2006 by which the plaintiffs had purchased the portions mentioned therein, and, therefore the provisions of Section 4 of the Partition Act or Section 4 of the Transfer of Property Act were not applicable to the facts of the case.
Be that as it may, in my view, the dismissal of the application filed by the defendants per se could not be faulted. In case the defendants are seeking a right of pre-emption to purchase the portions, purchased by the plaintiffs by deed dated 14-3-2006 on the assumption that the properties are still common they ought to raise a plea in that regard in their written statement. The question of payment, if any, can come only when they succeed with such a plea, if it is raised and proved in the trial of the suit. Consequently, this is not a fit case to entertain this Writ Petition in writ jurisdiction.