1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.502 OF 2010 Mahendrakumar s/o Prakashchand Modi, Petitioner Versus Shrinivas s/o Mukhaji Modi & others Respondents Mr.C.R.Deshpande, advocate for the petitioner. CORAM: R.M.BORDE, J. DATE : 30th March, 2010. P.C.: 1 Petitioner – original plaintiff is raising exception to the interlocutory order dated 28.07.2009, passed by Civil Judge, Senior Division, Dhule, below Exhibit-41 in Special Civil Suit No.58 of 2006. 2 Plaintiff presented suit claiming partition and separate possession of ancestral property. Defendants caused appearance and resisted claim by filing written statement. Defendants, along with other contentions, have also disputed ancestral nature of the suit property. Issues in the matter are framed on 01.10.2008. One of the issue is, “as to whether the properties are self acquired properties of defendants no.6 and 7.” The trial Court has also framed issue as to, “whether the suit properties are joint family properties”. 3 Plaintiff has presented an application at Exhibit-41 and prayed 2 for issuance of direction to defendants no.6 and 7 to lead evidence before plaintiff leads his evidence. It is the contention of plaintiff that burden of establishing the contention raised in respect of Issue No.4 is based on the pleadings of defendants no.6 & 7 and as such, they shall be called upon to lead evidence first before plaintiff opens his case. Plaintiff contends that he shall be permitted to reserve his right to lead evidence in respect of Issue No. 3. The trial Court has considered the application and rejected same. 4 It is contended by learned Counsel appearing for petitioner that plaintiff can reserve his right in respect of leading evidence on some issues. There is presumption in respect of joint family, however, there cannot be necessary presumption in respect of properties being belonging to the joint family. The trial Court has rightly rejected the application. The trial Court has adopted a view that plaintiff, who is essentially claiming his share in the ancestral property, has to prove his entitlement. 5 It would be for the trial Court to proceed with the suit in accordance with established procedure. At interlocutory stage, interference need not be caused. Considering facts and circumstances of instant case, I am of the view that no interference is required to be caused in exercise of extraordinary jurisdiction under Article 227 of the Constitution of India. 6 Writ Petition, therefore, stands rejected. (R.M.BORDE) JUDGE ******* adb/wp50210 3 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.3221 OF 2010 WITH CIVIL APPLICATION ST.NO.5106 OF 2010 IN WRIT PETITION NO.502 OF 2010 Mahendrakumar s/o Prakashchand Modi, Applicant Versus Shrinivas s/o Mukhaji Modi & others Respondents Mr.C.R.Deshpande, advocate for the applicant. CORAM: R.M.BORDE, J. DATE : 30th March, 2010. P.C.: 1 These are applications for bringing on record legal representatives of deceased Respondent No.3 – original defendant no.3 on record and also for condonation of delay of 14 days occurred in presenting application for the said purpose. 2 Heard learned Counsel for applicant. For the reasons stated in the applications, both applications are allowed. Legal Representatives of deceased Respondent No.3 – original defendant No.3 are permitted to be brought on record. Delay of 14 days occurred in presenting application stands condoned. Record be amendment accordingly. (R.M.BORDE) JUDGE ******* adb/wp50210