1 wp 5049.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5049 OF 2011 Jahirabi W/o Bashamiya, Age : 71 Years, Occu. : Household, R/o Parli Vaijnath, Tq. Parli Vaijnath, Dist. Beed. .. Petitioner Versus 1. Sk. Ismail Sk. Habib, Age : 46 Years, Occu. : Agril., R/o Parili Vaijnath, Dist. Beed. 2. Sk. Latif Sk. Habib, Age : 44 Years, Occu. : Agril., R/o Parili Vaijnath, Dist. Beed. 3. Kausarbee Sk. Habib, Age : 40 Years, Occu. : Household, R/o As above. 4. Lailabee Sk. Habib, Age : 69 Years, Occu : Agril. & H.H., R/o Parli Vaijnath, Dist. Beed. 5. Sk. Abdulla Bhauddin, Age : 80 Years, Occu. : Agril., R/o Parli Vaijnath, Dist. Beed. .. Respondents 2 wp 5049.11 Shri Sachin S. Deshmukh, Advocate for the Petitioner. Smt. M. A. Kulkarni, Advocate for Respondent Nos. 1 to 4. Smt. A. N. Ansari, Advocate for the Respondent No. 5 - absent. CORAM : S. V. GANGAPURWALA, J. DATE : 07TH DECEMBER, 2011. ORAL JUDGMENT : . Rule. Rule returnable forthwith. With the consent of parties taken up for final hearing. 2. The present respondent Nos. 1 to 4 have filed suit bearing R.C.S. No. 557/1982 claiming share. The said suit came to be decreed. The present respondents who are original defendants filed appeal before the District Court bearing R.C.A. No. 81/1993. During the pendency of said suit, present petitioner filed an application purportedly U/O 1 Rule 10(2) of the C. P. C. for impleading her as party on the ground that she also has share in the property. The said application is rejected. Aggrieved thereby the present petition is filed. 3. Shri Deshmukh, the learned counsel for the petitioner submits that though the suit filed by the petitioner for share in the property bearing R.C.S. No. 158/1982 was dismissed, the 3 wp 5049.11 Court in the said suit has held that the present petitioner has share in the property but on technical ground the suit was dismissed. The learned counsel states that the relationship between the parties is not disputed and the petitioner would have share in the property. The learned counsel further contends that one of the sharer has filed a suit, in such circumstances the defendant can certainly raise all the pleas available to her. Even the present petitioner who is one of the sharer in fact should have been made as a defendant in the suit. But the plaintiff deliberately did not add the present petitioner as party in the suit. In such circumstances, the application should have been allowed. 4. Mrs. M. A. Kulkarni, the learned counsel for the original plaintiffs submits that right of the present petitioner stood extinguished once her suit has been dismissed. Now the petitioner has no right, title or interest in the suit properties. The learned counsel relies on the judgment of the learned Single Judge of this Court in a case of Smt. Geeta wd/o Ashok Mishra Vs. Vijaychandra Sharma S/o Omprakash Sharma and others reported in 2000 (Supp.) Bom. C. R. 329 and another judgment in a case of Pandurang D. Rane and others 4 wp 5049.11 Vs. Vijabai V. Rane Sardessai and others reported in 2010 (1) Bom. C. R. 58. 5. The learned counsel further contends that the application has been filed in collusion with the respondent No. 5 to protract the matter. The petitioner could have filed the application in the suit itself, but deliberately did not file the same. Now when her right stood extinguished on account of dismissal of her suit, the petitioner cannot claim any right as her right stood extinguished inter alia could not have been added as party in the appeal. The only intention of the petitioner is to prolong the matter and deprive the respondents the fruits of the decree passed in their favour. The learned counsel further contends that she can only take defences and cannot contest the appeal. 6. With the assistance of learned counsel I have gone through the orders. The reletions between the parties are not disputed. Even in an earlier suit bearing R.C.S. No. 158/1982 the Court though had dismissed the suit had held that the present petitioner has succeeded in establishing her share in the property. However, the said suit came to be dismissed on other grounds. 5 wp 5049.11 7. In a suit for partition and separate possession all sharers are to be added as parties. Even as per Order 20 Rule 18 of the Code of Civil Procedure, when a Court has to pass a decree for partition, it has to carve out the share of each party. It is not disputed that the suit filed by the present respondent Nos. 1 to 4 was suit for partition of their share. In such circumstances, a duty is cast upon the Court to calculate the share of each and every party. In fact, when a suit for partition and separate possession is filed, it is the duty of the plaintiff to add all the shareres as parties. In the present suit it seems that the petitioner was not added as party. As per Sec. 107 of the C. P. C. all the provisions applicable to the suit are applicable to the appeals and the appeal is continuation of suit. The defences which are available to the present respondent Nos. 1 to 4/original plaintiffs would still be available. Even if the present petitioner is added as party, the present respondent Nos. 1 to 4 can raise the defences about extinguishment of right in the suit property and all available defences. But as the petitioner has shown her interest in the suit property, in such circumstances the provisions of Order 1 Rule 10(2) are attracted. The petitioner is a necessary party in such a litigation. 6 wp 5049.11 8. In the light of above, the impugned order is quashed and set aside and the application filed by the petitioner Exhibit 102 is allowed. Rule is accordingly made absolute in above terms. 8. Taking into account the fact that appeal is pending since 1993, the lower Appellate Court shall expeditiously decide the appeal and preferably within a period of six months from today. All defences are kept open. Sd/- [ S. V. GANGAPURWALA, J. ] bsb/Dec. 11