Harii Smbhu Patil Through Its ... vs Shantabai @ Mayabai Udhav Patil ...
2017 Latest Caselaw 9680 Bom

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              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.


                           -----

 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

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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

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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

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