WP No. 4172/2015
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
WRIT PETITION NO. 4172 OF 2015
1. Ramdas Shankarrao Dhumal,
Age: 63 years, Occu: Retired,
R/o At. Post Mamdapur,
Tq. Rahata Dist. Ahmednagar ....PETITIONER.
(Orig. defendant No 11)
Versus
1. Asha Bhvanrao Thorat, (died)
2.
Shevantabai Shankarrao Dhumal, (died)
3. Davaljirao Pratprao Deshmukh,
Age: 57 Years, Occu: Agri,
4. Sayajirao Prataprao Deshmukh,
Age: 54 Years, Occu: Agri,
R/o. At Post Kati, Tq. Tuljapur,
Dist. Osmanabad.
5. Suhasini Chandrshekhar Deshmukh, (died)
6. Aruna Sapantrao Jadhav,
Age: 54 Years, Occu: House hold
R/o. House No. 55, Ramacha Goal,
Agade Wada, Mangalwar Tal, Satara,
Tq. & Dist. Satara.
7. Parvati Murrarao Ghorpade,
Died through Lr.s,
7A Sambusingh Murrarao Ghorpade,
Age: Major, Occu: Agri.
7B Daulatrao Murrarao Ghorpade,
Age: Major, Occu: Agri,
R/o. 7 A to 7B, Raikar Building, Jakk-
ready Hospital,
Vidyanagar, Hubali, (Karnataka State.)
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WP No. 4172/2015
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(As per court's order dt. 23.10.15
dismissed against R-7B)
8. Gajanan Shankarrao Dhumal,
Age: 71 Years, Occu: Agri,
R/o. At Post. Kolhar, Tq. Rahata,
Dist. Ahmednagar.
9. Ashwini Shambhusingh Ghorpade,
Age: 69 Years, Ocuu: Agri,
R/o. E-7, Himali Society, Erandwarn,
Pune.
10. Tejaswini Nandkumar Bhosale,
Age: 67 Years, Occu: House hold,
R/o. Near N.C.C. Office, Jadhav Nagar,
Old Recourse, Belgaon, (Karnataka State).
11. Vishwasrao Shankarrao Dhumal,
Age: 65 Years, Occu: Retired,
R/o. 1501, Broke Ville,
Matunga West, Mumbai-400015.
12. Ajay Shankarrao Dhumal,
Age: 57 Years, Occu: Business,
R/o. 202, Varun, raheja Town Ship,
Malad Estate, Mumbai-East.
13. Nita Sunil Dhabekar,
Age: 52 Years, Occu: Agri,
R/o. Amankha Plot, Akola,
Tq. & Dist. Aklola.
14. Vikram Gajanrao Dhumal,
Age: 43 Years, Occu: Business,
R/o. Bhavani, Plot No 4, Road No. 10,
Secto 19, New Panwel, Mumbai.
15. Vaishali Sameer Garud,
Age: 39 Years, Occu: House hold,
R/o. 804, Armi Complex,
1st Building Nerul,
New Mumbai.
16. Shushma Vishwasrao Dhumal,
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WP No. 4172/2015
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Age: 61 Years, Occu: Agri,
17. Amrut Vishwasrao Dhumal,
Age: 32 Years, Occu: Education,
18. Prasad Vishwasrao Dhumal,
Age: 30 Years, Occu: Education,
R/o. 16 to 18, 1501, Broke Ville,
Matunga West, Mumbai-400015.
19. Aruna Ramdas Dhumal,
Age: 58 Years, Occu: House hold,
R/o. Thorat Complex, Near Deep
Banglow, Tq. & Dist. Pune.
20.
Surekha Ajay Dhumal,
Age: 54 Years, Occu: House hold,
R/o. 202, Varun, raheja Town ship,
Malad Estate, Mumbai- East.
21. The Branch Manager,
State Bank of India, Branch.
'Videsh Wapar', World Trade center,
Khaf pared, Mumbai.
22. The State of Maharashtra,
Through Its Secretary,
Mantralaya Mumbai-32.
23. The Collector Ahmednagar,
Dist. Ahmednagar.
24. The Tahsildar rahata,
Tq. Rahata, Dist, Ahmednagar.
25. The Block Officer,
Revenue Department, Rajuri Mandal,
Tq. Rahata, Dist. Ahmednagar.
26. The Block Inspector,
Shrirampur, Tq. Shrirampur,
Dist. Ahmednagar.
27. The Block Inspector,
Kolhar (Bu) Tq. Rahata,
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WP No. 4172/2015
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Dist. Ahmednagar.
28. The Talathi Kolhar (Bu.)
Kolhar (Bu) Tq. Rahata,
Dist. Ahmednagar.
29. The Talathi Mamdapur,
Mamdapur, Tq. Rahata,
Dist. Ahmednagar.
30. The Talathi Mandve,
Mandve, Tq. Shrirampur,
Dist. Ahmednagar. ...RESPONDENTS.
Mr. P.R. Nangare, Advocate for petitioner.
Mr. S.S. Deshmukh, Advocate for respondent No.19
Mr. S.S. Kulkarni, Advocate for respondent Nos. 3 to 6,7A, 8 to
18,20.
CORAM : T.V. NALAWADE, J.
DATED : 31st August, 2016.
JUDGMENT :
1) Rule. Rule made returnable forthwith. By consent, heard both the sides for final disposal.
2) The petition is filed to challenge the order made on Exh. 151 in R.C.S. No. 168/2006, which was pending in the Court of Civil Judge, Senior Division, Kopargaon. The said application was filed by present petitioner to transpose him from the array of defendants to array of plaintiff as plaintiff, who was his sister, is dead. The suit was filed for relief of partition against the brothers and others and in view of these circumstances, ::: Uploaded on - 02/09/2016 ::: Downloaded on - 03/09/2016 00:37:26 ::: WP No. 4172/2015 5 defendant No. 11, present petitioner wanted to prosecute the suit. This application was opposed by the other side and after hearing both the sides, the Trial Court had rejected the application.
3) The Trial Court has referred the provisions of Order 23, Rule 1-A and Order 1, Rule 10 of Civil Procedure Code. The learned counsel for petitioner submitted that it being a partition suit, the cause of action did survive and even the defendant was entitled to get share and so, he is entitled to get transposed to the array of plaintiff. He placed reliance on the provisions of Order 22, Rule 3 of Civil Procedure Code. He also placed reliance on the case reported as AIR 2003 AP 300 [Rapolu Yadagiri Vs. Rapolu Lakshmamma And Ors.].
4) In the said case, the Andhra Pradesh High Court has discussed similar situation, the suit involving relief of partition.
On the other hand, contesting respondents, defendants placed reliance on the case reported as 2016 (3) ALL MR 825 [Mahadeo s/o. Champatrao Karluke & Anr. Vs. State of Maharashtra & Ors.] of this Bench and he submitted that subsequent to the order made on Exh. 151, the Trial Court disposed of the proceeding itself as proceeding is abated due to ::: Uploaded on - 02/09/2016 ::: Downloaded on - 03/09/2016 00:37:26 ::: WP No. 4172/2015 6 death of plaintiff. He submitted that in view of this circumstance, the order of abatement needs to be challenged and that can be done only under provisions of Order 43 of Civil Procedure Code.
5) This Court holds that there is no force in the submission made by the learned counsel for contesting defendnats, present respondents. If petitioner succeeds in the present matter, he gets himself transposed to the array of plaintiff, in that case, there is no possibility of disposal of the suit due to abatement. Thus, the subsequent order made by the Trial Court cannot be read in the present matter and so, there is no necessity to refer Order 43 of Civil Procedure Code. In view of the fact that the suit was filed for relief of partition and defendant, present petitioner may be entitled to get share in the property along with plaintiff and in view of the provision of Order 22, Rule 27 of Civil Procedure Code, this Court holds that the Trial Court has committed error in rejecting the application.
6) In the result, petition is allowed. The order made by the learned Civil Judge, Senior Division, Kopargaon below Exh.
151 in Regular Civil Suit No. 168/2006 is hereby set aside. The application, Exh. 151, is allowed. Defendant No. 11 is allowed to come on record as plaintiff. The subsequent orders made by the ::: Uploaded on - 02/09/2016 ::: Downloaded on - 03/09/2016 00:37:26 ::: WP No. 4172/2015 7 Trial Court are to be ignored.
Rule is made absolute in aforesaid terms.
[ T.V. NALAWADE, J. ] ssc/ ::: Uploaded on - 02/09/2016 ::: Downloaded on - 03/09/2016 00:37:26 :::