1 WP-2358-14.doc
IN THE HIGH COURT OF JUDICATURE AT B0MBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 2358 OF 2014
Hari s/o Sambhu Patil,
Through its G.P.A.
1. Jadhav s/o Sambhu Patel .. Petitioner
Age 55 years, occup. Agril.
R/o Mohinde, Tq. Shahada,
Dist. Nandurbar.
versus
1. Shantabai @ Mayabai w/o Udhav Patil
Age 50 years, occup. Household,
R/o Mohinde, Tq. Shahada,
dist. Nandurbar.
2. Arunagbai w/o Bhagwan Patil
Age 48 years, Occu. Household,
. R/o Padalda Tq. Shahada
Dist. Nandurbar
3. Vandanabai W/o Yadav Patil
Age 45 years, Occu. Household.
R/o Mohinde Tq. Shahada
Dist. Nandurbar.
4. Ramdas S/o Natthu Patil
Age 56 years, Occu. Agri.
R/o Mohinde Tqa. Shahada
Dist. Nandurbar.
5. Laxman S/o Natthu Patil
Age 54 years, Occu. Agri.
R/o Mohinde Tq. Shahada
Dist. Nandurbar.
6. Bharat S/o Natthu Patil
Age 51 years, Occu. Agri.
R/o Mohinde Tq. Shahada
Dist. Nandurbar.
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7. Devabai W/o Natthu Patil
Age 73 years, Occu. Agri.
R/o Mohinde Tq. shahada
Dist. Nandurbar.
8. Hemant S/o Ramanlal Sonar
Age 42 years, Occu. Agri.
R/o Mohinde Tq. Shahada
Dist. Nandurbar.
9. Nilesh S/o Ramchandra Sonar
Age 42 years, Occu. Agri.
R/o Mohinde Tq. Shahada
Dist. Nandurbar.
10. Chetan S/o Ramanlal Sonar ...Respondents
Age 40 years, Occu. Agri.
R/o Mohinde Tq. Shahada
Dist. Nandurbar.
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Mr. Durgesh M. Pingale, Advocate for petitioner
Mr. Dhananjay Mane, Advocate holding for
Mr. Milind Patil, Advocate for respondents no.5,9 & 10
CORAM : SUNIL P. DESHMUKH, J.
DATE : 15th December, 2017 ORAL JUDGMENT:
1. Rule. Rule made returnable forthwith. Heard learned counsel for the parties finally by consent.
2. This is a writ petition by defendant no. 5 in regular civil suit no. 62 of 2010 instituted by respondents no.1 to 3 for partition and injunction against defendants no.1 to 8. Petition purports to take exception to order dated 23-10-2013 passed by Civil Judge, Senior ::: Uploaded on - 23/12/2017 ::: Downloaded on - 24/12/2017 00:39:50 ::: 3 WP-2358-14.doc Division, Shahada, rejecting petitioner's application Exhibit - 81, seeking his deletion from the array of defendants with reference to Order I, rule 10 (2) of the Code of Civil Procedure, 1908.
3. After filing written statement, petitioner - defendant no. 5 had moved application Exhibit - 81, contending that concerned suit land had come to the share of predecessor of defendants no. 1 to 4 and among them, partition had taken place way back in 1966 and 1980 and since then the same had not been questioned till institution of present suit which has been filed in 2010. Revenue entries have been continuously bearing the same. Upon this premise, according to defendant no. 5, since it has emerged that the property which has been purchased by him from defendant no. 2 had been separate and independent property of defendant no. 2 since the partition and as such defendant no. 2 had been entitled and was within his rights to sell the same. In the circumstances, this being the factual undeniable position, so far as petitioner is concerned, no relief of partition would be tenable against him and his presence in the matter would thus not be necessary.
4. While this was being submitted so, in paragraphs no.5 and 6 of the order impugned, elaborate discussion has been made regarding factual position. It has particularly been considered that petitioner claims the property of which partition is sought under the suit through defendant no. 2 and defendant no. 2's right to deal ::: Uploaded on - 23/12/2017 ::: Downloaded on - 24/12/2017 00:39:50 ::: 4 WP-2358-14.doc with the property is at stake. The trial court, as such, has adjudged the position in its discretion and it cannot thus be said that defendant no. 5 would not be necessary party, having regard particularly to the background that petitioner - defendant no. 5 has already filed his written statement in the suit.
5. The discretion so exercised by the trial court does not appear to be deficient nor arbitrary or for that matter capricious. The order impugned has been passed in the discretionary power, after and taking into account relevant aspects involved in the matter.
6. It is not a case wherein impugned order requires to be meddled with.
7. Writ petition, as such, is dismissed. Rule is discharged.
SUNIL P. DESHMUKH JUDGE pnd ::: Uploaded on - 23/12/2017 ::: Downloaded on - 24/12/2017 00:39:50 :::