The High Court dismissed a writ petition filed by self-claimed third parties. The bench held that the petitioners were not necessary parties in the underlying suit regarding property possession and title, as they could establish their rights through separate proceedings.
Writ petition stands dismissed. Rule discharged. No costs.
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wp461314.odt
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD
WRIT PETITION NO.4613 OF 2014
01 Rameshwar s/o Venkoba Kakade, age: 52 years, Occ: Agril, R/o Kasari, Tq.Kaij, Dist.Beed. 02 Venkoba s/o Ganpati Kakade, age: 74 years, Occ: as above, R/o as above. Petitioners
Versus
Smt.Sidwabai w/o Narsu Kakade, age: 50 years, Occ: Agril., R/o Kasari, Tq.Kaij, District Beed.
Respondent
Mr.Ramraje Deshmukh, advocate holding for Mr.S.S.Thombre, advocate for the petitioners Mr.B.R.Kedar, advocate for the Respondent.
CORAM : S.B.SHUKRE, J. DATE : 16th February, 2017
ORAL JUDGMENT :
1 Heard. Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties.
2 The basic assertion of petitioners, who claim to be third parties having interest in the lis, is on the fact that petitioner no.2Venkoba was real brother of Sahebrao – deceased defendant no.1 and there there was a partition between Venkoba and Sahebrao, in which, each of the persons came into possession of one-half share of the property and thus, the petitioners are having possession over part of the property, which is subject matter of the suit.
3 It is pointed out by learned Counsel for respondent that none of the defendants, in the written statement, has averred that
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wp461314.odt
Venkoba was in possession of some property and so the third party petitioners are presently in possession of part of the property.
4 According to learned Counsel for petitioners, the fact that petitioners being in possession, could be said to be impliedly admitted by the original plaintiff as the original plaintiff, in her application filed for seeking temporary injunction vide Exhibit-5, had joined the petitioner no.2-Venkoba as non applicant no.2.
5 Learned Counsel for the respondent submits that the petitioner no.2 was joined as non applicant no.2 only for the reason that it was the claim of the original plaintiff that the petitioner was helping the defendants in committing their illegal acts and that it was never the case of the original plaintiff that Venkoba was in possession of part of the suit property.
6 Considering these submissions, I find that the learned Civil Judge has rightly found that the petitioners are not and could not be necessary parties in the present suit and that the petitioners can very well establish their right, title and interest in the suit property by instituting separate proceedings. In such a situation, petitioners could not be permitted to join the cause of action of this suit. There is no merit in this petition.
7 Writ Petition stands dismissed. Rule discharged. No costs.
adb/wp461314
S.B.SHUKRE
JUDGE
1 issue framed by the court
Whether the writ petitioners, claiming to be third parties with interest in the lis, are necessary parties to the suit regarding joint family partition and possession.
Rameshwar s/o Venkoba Kakade and Venkoba s/o Ganpati Kakade
Smt. Sidwabai w/o Narsu Kakade
S.B. Shukre
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
