Bombay High Court
Narayan Ratanrao Raner vs Govind Ratanrao Raner And Others on 21 June, 2017
Bench: S.P. Deshmukh
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3954 OF 2017
Narayan s/o Ratanrao Raner
Age : 58 years, Occu: Service,
R/o Ekta Nagar, Pathri
Tq. Pathri, Dist. Parbhani. ...Petitioner
(Ori. Plaintiff)
Versus
1. Govind s/o. Ratanrao Raner (Deleted)
Age : 68 years, Occu: pensioner & Agril.
R/o. Panchawati Colony, Manwat,
Tq. Manwat, Dist. Parbhani
2. Narshing s/o Ratanrao Raner (Deleted)
Age : 66 years, Occu: Agril.
R/o. Rampuri (Kh.), Tq. Pathri,
Dist. Parbhani.
3. Shrihari s/o Ratanrao Raner (Deleted)
Age : 64 years, Occu: Agril.
R/o. Panchwati Colony, Manwat
Tq. Manwat, Dist. Parbhani.
4. Shivaji s/o Ratanrao Raner
Age : 56 years, Occu: Agril.
R/o. Rampuri (kh.) Tq. Pathri,
Dist. Parbhani.
5. Kaveri w/o Shivaji Raner
Age : 50 years, Occu: Agril. & Household
R/o. Rampuri (kh.), Tq. Pathri,
Dist. Parbhani.
6. Nirmala w/o Shrihari Raner
Age : 57 years, Occu: Agril & Household
R/o Panchawati Colony, Manwat,
Tq. Manwat, Dist. Parbhani.
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7. Shewantabai w/o Rangnathrao Kaldate
Age : 67 years, Occu: Household,
R/o. Brahmangaon, Tq. & Dist. Parbhani.
8. Dwarkabai w/o Bhagwantrao take
Age : 62 years, Occu: Household,
R/o Chikalthana, Tq. Sailu,
Dist. Parbhani. ...Respondents
(Ori. Defendants)
...
Mr. Sudhir K. Chavan, Advocate for petitioner
Mr. V. M. Mane, Advocate h/f Mr. Kalyan S. Chavan,
Advocate for respondent no. 4 and 5.
...
[CORAM: SUNIL P. DESHMUKH, J.]
Date: 21st June, 2017
ORAL JUDGMENT :
1. Learned counsel for petitioner, on instruction, seeks
leave to delete respondents no. 1 to 3.
2. Leave granted as prayed for to delete respondents
no. 1 to 3, at the risk and peril of writ petitioner.
3. Rule. Rule made returnable forthwith and heard
finally with consent of learned advocates for the appearing
parties.
4. Writ petitioner questions validity and propriety of
order dated 11th November, 2016 passed by the civil judge,
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senior division, Pathri on exhibit-47 in regular civil suit no.
34 of 2014. Exhibit-47 was filed by defendants-respondents
no. 4 and 5, seeking direction to plaintiff to amend the
plaint by adding certain parties and about 14 properties as
described in the application as well as in written statement
and find out whether those are joint family properties or are
acquired by plaintiff from his own fund.
5. It is contention of the plaintiff-petitioner that those
properties are self-acquired properties. Written statement
exhibit-30 had been filed by defendants no. 4 and 5 on 20th
November, 2014, thereby opposing the claims made by the
plaintiff.
6. It appears that issues are yet to be framed. The trial
court while deciding application exhibit-47, has observed
that the question as to whether those properties are self-
acquired or joint family properties, can be decided only
after considering evidence of the parties and at this stage,
it cannot be taken up for deciding finally. The court further
referred to that in suit for partition, to avoid multiplicity of
proceedings and for proper adjudication, all members of
hindu family should be included.
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7. Learned counsel for petitioner candidly submits that
properties referred to in application exhibit-47, are self
acquired properties of the plaintiff and those have no
concern with joint family property and joint family fund and
further that plaintiff cannot be forced upon inclusion of the
properties by way of amendment. Since defendants have
pleaded that properties mentioned in application exhibit-47
are joint family properties, issue can be framed in that
respect and burden of proving the same would lie on the
defendants.
8. Learned counsel for the respondents submits that as
a matter of fact, it would be in the interest of plaintiff to
add all necessary parties and include the properties else
suit would be bad for non-joinder of necessary parties and
non-inclusion of all joint family properties. As such,
petitioner shall not oppose the order passed.
9. Learned counsel for the petitioner submits that, in the
first place, it is for the parties claiming to be joint family
property, to discharge burden about the same and then
owner may deny property to be joint family property. The
plaintiff has asserted that, save the properties originally
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included in the plaint, other properties referred to in
application exhibit-47 are self acquired properties.
10. Having heard parties as aforesaid, it appears that the
plaintiff is reluctant to include properties referred to in
application exhibit-47 claiming the same to be self acquired
properties, whereas, defendants claim those to be joint
family properties.
11. In the circumstances, issues may arise and matters
will have to be decided in accordance with evidence placed
on record in respect of said issue.
12. In the circumstances, impugned order dated 11th
November, 2016 passed by civil judge, junior division,
Pathri on application exhibit-47 in regular civil suit no. 34 of
2014, would be required to be set aside and is accordingly
set aside. Writ petition, as such, succeeds and is disposed
of.
13. Rule is made absolute in terms of prayer clause (C).
[SUNIL P. DESHMUKH, J.]
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