(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 210 OF 2011 1. Maruti s/o. Arjun Kshirsagar, Age : 67 years, Occupation : Nil, R/o. Miskinpura, Latur, Taluka & District : Latur. 2. Datta s/o. Maruti Kshirsagar, Age : 32 years, Occupation : Agriculture, R/o. Miskinpura, Latur, .. Petitioners Taluka & District : Latur. (Original defendants) versus Madrawati w/o. Gangadhar Kshirsagar, Age : 62 years, Occupation : Household and labour, R/o. C/o. Sham Ratan Kabra, near Rani Laxmibai Vidyalaya, Bhagyalaxminagar, M.I.D.C., Latur, Taluka & District : Latur, At present C/o. Sanjay Narayan Kshirsagar, Miskinpura, Deshpande Galli, Latur, .. Respondent Taluka & District : Latur. (Original plaintiff) ....................... (2) Mr. C.R. Deshpande, Advocate, for the petitioners. Mr. A.H. Kasliwal, Advocate, for the respondent. ........................ CORAM : B.P. DHARMADHIKARI, J. DATE : 27TH APRIL 2011 ORAL JUDGMENT : 1. Heard Adv. Mr. C.R. Deshpande, for the petitioners, and Adv. Mr. A.H. Kasliwal, for the respondent. 2. Rule. Rule made returnable forthwith. Heard finally with consent. 3. The respondent filed a suit for partition and separate possession against the present petitioners who are her brother and son of brother. In the suit, according to the present petitioners, there was a compromise and that compromise was read over and recorded by trial court on 2-1-2008. That order was questioned in Civil Revision Application No. 75/2008 by plaintiff (respondent herein) and this court on 23rd June 2009, directed trial court to find out whether really a compromise was (3) entered into between parties or not. 4. Thereafter before trial court, the respondent filed her affidavit of examination in chief. She was cross examined and then an application at Exhibit 51 came to be filed on her behalf seeking leave to withdraw the suit with liberty to file fresh. The confusion about boundaries of suit property was given as reason for withdrawal. Application was opposed and by the impugned order dated 23-11-2010, learned Civil Judge (Senior Division), Latur, has permitted respondent to withdraw that suit with liberty to file fresh. 5. Adv. Mr. C.R. Deshpande, for the petitioners, states that as a part of compromise, amount of Rs. 70,000/- each has been paid by the present petitioners to the respondent and her two daughters, namely, Asha and Soni, by depositing the same in bank. He also invites attention to affidavit of Asha filed in Civil Revision Application No. 75/2008 to substantiate such payment. 6. According to Adv. Mr. A.H. Kasliwal, for the respondent, there was no compromise and affidavit given by Asha is totally irrelevant because Asha was not party either to the Civil Suit or then to Civil Revision Application before this court. He contends that for valid reasons, leave to withdraw the (4) suit with liberty to file fresh was sought and that has been granted. 7. With the assistance of the learned Counsel, I have perused the impugned order. The impugned order does not make any reference to the earlier compromise, the High Court revision or then directions given by this court to find out whether in reality there was any compromise. It is apparent that if there was already a compromise, the question of withdrawal of suit would not have arisen. The suit could have been allowed to withdraw only after recording a finding that there was no compromise. The trial court has overlooked this aspect and without recording any finding, as directed by this court, in its order dated 23rd June 2009, in Civil Revision Application No. 75/2008, the suit has been allowed to be withdrawn. In view of this, I am not at present considering the propriety or otherwise of the reason pressed into service for withdrawal of suit and grant of liberty. 8. In the result, the petition is allowed. The impugned order dated 23-11-2010, passed by the learned Civil Judge (Senior Division), Latur, below Exhibit 51 in Special Civil Suit No. 151/2007, is quashed and set aside. The (5) trial court shall first record finding as directed by this court in its order dated 23rd June 2009 in Civil Revision Application No. 75/2008 and proceed further with adjudication, if necessary, in accordance with law. 9. Rule is made absolute accordingly. No costs. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp210