222sa278.09.odt 1 . IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Second Appeal No.278 of 2009 (Kisan s/o. Domaji Gajbhiye vs. Mrs. Tulsabai w/o. Stephen Peter and Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Coram: R. K. Deshpande, J. Date : February 22, 2010 Heard Mr. S. D. Sirpurkar, Adv. for appellant and Mr.G.D.Asole, Adv. for respondent nos. 1 to 4. This is an appeal filed by Original defendant no.1 challenging the judgment and order dated 7th April, 2007 passed by the learned Ad-hoc District Judge at Nagpur reversing the judgment and decree passed in Regular Civil Suit No. 31 of 2000 by learned Civil Judge (Sr. Dn.), Saoner, District Nagpur on 17.3.2003. The trial Court had dismissed the suit for partition and separate possession filed by respondent no.1/plaintiff. The Appellate Court has reversed the same and passed decree for partition and separate possession of the property by its judgment and order dt. 7.4.2007, which is subject matter of challenge in this Second Appeal. Mr. Sirpurkar, Adv. appearing for the appellant has urged that Dama Gajbhiye, father of appellant had executed Will dt. 27.4.1992 at Exh.54 in favour of his grandson Gulshan who is the son of present appellant in respect of the entire suit property and 222sa278.09.odt 2 . hence, Gulshan was necessary party to the proceedings of Regular Civil Suit No.31/2000 filed by respondent/plaintiffs. According to him, the suit should have been dismissed on the ground of non- joinder of necessary party, particularly when the Appellate Court has recorded a finding that the Will deed of Dama Gajbhiye at Exh.54 was not valid. The question of mis-joinder, non-joinder of parties is governed by the provisions of Order 1, Rule 9 of the Code of Civil Procedure which states that no suit should be defeated by reason of the mis-joinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The proviso to this rule states that : provided that nothing in this rule shall apply to non-joinder of necessary party. The provision of O. 1, R. 13, which is relevant in the present case is re-produced below : “ 13. Objections as to non-joinder or mis- joinder. - All objections on the ground of non- joinder or mis-joinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived. “ Thus, all objections regarding non-joinder or mis-joinder of parties are required to be taken at the earliest possible 222sa278.09.odt 3 . opportunity and in case where the issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived. It is not in dispute that the appellant/defendant no.1 has not raised this objection either before the trial Court or the appellate Court regarding non-joinder of Gulshan as a necessary party to the suit. It is not in dispute that the alleged Will dt. 27.4.1992 was executed prior to institution of the suit and thus, the claim on the basis of Will did not arise during pendency of the suit. But it was subsisting on the date of filing of the suit. At any rate, the plaintiff is dominis litis and it is for him to decide against whom he should claim the relief and who should be joined as party to the suit. The plaintiff has chosen not to claim any relief against said Gulshan nor has joined said Gulshan as a party to the said suit. In view of this, the question of non-joinder of necessary party cannot, at this stage, be entertained. The appeal is, therefore, dismissed. JUDGE jais