Sau. Durgatai Narayanrao Sarap ... vs Nagesh S/O Marotirao Jadhav And ...
2023 Latest Caselaw 7396 Bom

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

                            WRIT PETITION NO. 4114 OF 2022
                    ( Sau. Durgatai Narayanrao Sarap & Ors.
                                      Vs.
              Nagesh s/o Marotirao Jadhav (Dead), Thr. LRs. & Ors. )

Office Notes, Office Memoranda                           Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders


                                  Mr. J.B. Gandhi, Advocate for the Petitioners.




                                  CORAM:         AVINASH G. GHAROTE, J.

DATED : 25th JULY, 2023

Heard Mr. Gandhi, learned counsel for the petitioners.

2. The petition challenges the order dated 19.12.2019 passed by the learned Appellate Court, which rejects the application under Order 1 Rule 10 of the Code of Civil Procedure, filed by the present petitioners, who claimed to be the daughters of Martandrao Zambre on the ground that the property was ancestral, and therefore, they are proper and necessary parties.

3. It is material to note, that the suit filed by the respondent No.1 against the respondent Nos. 2 to 5 is the suit for specific performance of an agreement of sale dated 15.12.2005, which came to be decreed by the learned Trial Court by the judgment and decree dated 04.02.2011, which is the subject matter of challenge in

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appeal. In appeal, the said application has been filed which has been rejected by the impugned order. Though it is contended, that the petitioners are proper and necessary parties, in my considered opinion, a suit for specific performance is for the purpose of enforcement of the terms of the contract between the parties to it, and therefore, cannot be enlarged to a suit for declaration and partition, in view of which, I do not see any reason to interfere in the impugned order.

4. The Petition is therefore without any merit and is accordingly dismissed. No costs.

5. Needless to say, that the petitioners would be entitled to file a substantive suit for declaration, partition and possession, which shall be decided on its own merits.

JUDGE SD. Bhimte