1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 2235 OF 2009 1 Smt. Vijayalaxmi s/o Yedba Khaladkar age 69 years, occ. household r/o Infront of Police Line Osmanabad Tq. & Dist. Osmanabad. 2 Ambadas s/o Yedba Khaladkar age 38 years, occ. business r/o Anjana Floor Mil Samta Nagar, Near Maruti Mandir Osmanabad Tq. & Dist. Osmanabad. 3 Sow. Sujata s/o Ambadas Khaladkar age 32 years, occ. household r/o as above. .. PETITIONERS VERSUS 1 Premraj s/o Mahesh Khaladkar age 6 years, minor u/g of his real mother Archana w/o Mahesh Khaladkar age 26 years, occ. household r/o Infront of police line Infront of house of Gadkar President of Municipal Council Osmanabad Tq. & Dist. osmanabad. 2 Mahesh s/o Yedba Khaladkar age major, occ labour r/o Infront of Police Lline Infront of house of Gadkar President of Municipal Council. Osmanabad 2 Tq. & Dist. Osmanabad. .. RESPONDENTS Mr. S.T. Ghute, Advocate for the petitioners. ===== CORAM : R. M. BORDE, J. DATE : 16 th November, 2009 ORAL JUDGMENT : 1 Rule. 2 Respondents though were served on two occasions, did not cause appearance in the matter. As such, petition is taken up for final disposal at admission stage. 3 Petitioners are the original defendants in a suit presented by respondent no. 1 / original plaintiff being Regular Civil Suit no. 151/2006 claiming partition and separate possession of the ancestral property. Defendants have presented written statement and controverted contentions raised by plaintiff. Defendants dispute ancestral nature of the suit property. It is also contended by defendants that the property in question has been purchased in the name of defendant no. 1 and as such he is exclusive owner 3 and possessor of the property. Trial court on the basis of pleadings framed issues on 2-7-2008. According to defendants issues framed by the trial court are not in accordance with the pleadings raised by the parties and as such additional issues are required to be framed. Defendants claim that the issue in respect of applicability of provisions of Benami Transaction Prohibition Act as well as issue as to whether the suit would be barred under said provisions is also required to be framed. It is also contended by defendants that plaintiff also has to establish the ancestral nature of the property and as such issue in that regard is also required to be framed. 4 Considering the pleadings raised by the parties, I am of the view that certain additional issues will have to be framed and shall be dealt with by the trial court while deciding the controversy arising between the parties. In this view of the matter, application tendered by defendants needs to be allowed and the trial court shall have to be directed to frame two additional issues as regards ancestral nature of the suit property as well as issue in respect of applicability of the provisions of Benami Transaction Prohibition Act. Order passed by the trial court rejecting application tendered by defendants at exh. 43 on 22-3-2009 shall stand quashed and set aside. Trial court is directed to frame following two additional issues : 4 1 Do plaintiffs prove that the suit property is joint family property belonging to the family ? 2 Whether the contention raised by defendants that the suit is barred by provisions of Benami Transaction Prohibition Act needs to be accepted ? . Trial court is directed to frame aforesaid two additional issues and proceed to decide the suit in accordance with the provisions of law. Rule is accordingly made absolute. However, in the facts and circumstances of the case, there shall be no order as to costs. ( R. M. BORDE, J.) dyb/office/wp2235.09.odt