Vilas S/O Rajanna Veginwar vs Shankar S/O Rajanna Veginwar And ...
2021 Latest Caselaw 3964 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR.

                       WRIT PETITION NO.1713 OF 2020
                           Vilas s/o Rajanna Veginwar
                                       Vs.
                    Shankar s/o Rajanna Veginwar and others
_______________________________________________________________________
Office Notes, Office Memoranda of Coram,
appearances, Court's orders of directions             Court's or Judge's orders.
and Registrar's Orders.
                  Shri Madhur Deo, Advocate for petitioner.


                                 CORAM : V.M. DESHPANDE, J.

DATE : 3rd MARCH, 2021.

Heard Shri Madhur Deo, learned counsel for the petitioner.

(2) This petition is filed by the original defendant no.1, who is the real brother of the plaintiff/respondent no.1.

(3) Initially, a suit for mandatory and perpetual injunction was filed. Though there is a prayer for passing sentence in the plaint that the plaintiff is having 1/3rd share in the suit property. The learned counsel for the petitioner submits that the written statement was filed and in the written statement it was contended that there was a partition by drawing memorandum of partition which was signed by the brothers in presence of panchas and the suit property fall to the share of the petitioner. He submits that this written statement was filed on 19.09.2008. So in the

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year 2008 itself, the plaintiff was knowing about the theory of partition on the part of the petitioner. He further submits that thereafter parties entered into the witness box to adduce their evidence. He submits that after the case was fixed for judgment, learned Judge suo motu framed two issues i.e. issue Nos.1(A) and 1(B). He submits that thereafter the respondent no.1 plaintiff filed an application for deletion of these issues. However, his application was rejected and the case was fixed for evidence. At that time the respondent no.1/plaintiff filed an application below Exhibit- 132 for amendment, a declaration is sought that plaintiff is having 1/3rd share in the suit property therefore decree of partition is claimed. He further submits that all the brothers were not parties to the suit. Further, it is his submissions besides the two properties there are other properties of the family and for which no partition is claimed. He also submits that the application is conspicuously silent about due diligence.

(4) I have gone through the plaint, written statements, application for amendment and impugned order. Considering the same in the light of the submissions made on behalf of the learned counsel for the petitioner, I am of the view, that the petitioner has made out a case for issuance of notice.

(5) Hence, issue notice to the respondents, returnable after four weeks.

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         (6)            In the meanwhile, there shall be stay to the

further progress of the Regular Civil Suit No.222 of 2008 pending on the file of learned 2nd Joint Civil Judge Senior Division, Chandrapur.

JUDGE Wagh