(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 4761 OF 2009 1. Shriram s/o. Ratanlal Thakur, .. Petitioners 2. Mrs. Shanta w/o. Shriram Thakur. (Original defendant nos.2 & 3, respectively. versus 1. Miss Vandana d/o. Shriram Thakur, .. Respondents 2. Vishal s/o. Shriram Thakur, (Nos.1 to 3 - 3. Pravin s/o. Shriram Thakur, Original plaintiffs, 4. Rameshwar s/o. Shaligram Chandak. and No.4 - Original defendant no.1 ) .......................... Mr. C.V. Korhalkar, Advocate, holding for Mr. S.V. Adwant and Mr. R.B. Dhakane, Advocates, for the petitioners. Mr. A.D. Kasliwal, Advocate, for respondent no.4. .......................... CORAM : B.R. GAVAI, J. DATE : 9TH NOVEMBER 2009. (2) COURT'S ORDER : 1. By way of present petition, the petitioners have challenged the order dated 23rd February 2009, passed by the learned IIIrd Joint Civil Judge (Senior Division), Aurangabad, below Exhibit 69, in Special Civil Suit No. 377/2006, thereby rejecting the application filed by the present petitioners for permission to cross examine witness of the plaintiff. 2. Mr. C.V. Korhalkar, learned Counsel appearing for the petitioners, submits that when witnesses of the plaintiff were cross examined by the defendant no.1, they were not present and, as such, said application ought to have been allowed. He further submits that merely because part of the claim of the plaintiff is admitted by the said defendant, it cannot be said that they are supporting the claim of the plaintiff, so as to deprive them of the valuable right to cross examine witness of the plaintiff. 3. The suit has been filed by the plaintiffs, respondent nos.1 to 3 herein, for partition and a declaration that the plaintiffs are entitled to their separate shares in the ancestral property. The plaintiffs have further prayed for an order of injunction restraining the defendant no.1 from interfering, obstructing, causing hindrance and nuisance to the peaceful possession of the plaintiffs. 4. Perusal of the pleadings would reveal that the present petitioners have admitted that the suit property is an ancestral propoerty (3) and that they have a share in the said property along with the original plaintiffs. However, from the perusal of the written statement filed by them, it would reveal that they are contesting the case of original defendant no.1, respondent no.1 herein, that he is owner of the said land in view of sale deed dated 20th October 1994. It can clearly be seen that the present petitioners support the claim of the plaintiff and oppose the claim of original defendant no.1. 5. The learned Single Judge of this court, in the case of Mandabai Ramkrishna Tumsare and others Vs. Ramlal Hiramanji Hiwarkar & others (1986 Mh.L.J. 643), has held that such of the defendants supporting case of plaintiff should be called upon to cross examine the witnesses of the plaintiff before cross examination by defendant contesting claim of the plaintiff. 6. In that view of the matter, no perversity could be found with the approach adopted by the learned Judge of the trial court, so as to warrant interference in exercise of extraordinary jurisdiction of this court under Article 227 of the Constitution of India. 7. Hence, the petition is dismissed. ( B.R. GAVAI ) JUDGE ......................... bgp/4761wp