Bombay High Court
Ramdas Shankarrao Dhumal vs Asha Bhvanrao Thorat, Lrs ... on 31 August, 2016
Bench: T.V. Nalawade
WP No. 4172/2015
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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,
WP No. 4172/2015
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
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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
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Trial Court are to be ignored.
Rule is made absolute in aforesaid terms.
[ T.V. NALAWADE, J. ]
ssc/
