1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATEJURISDICTION WRIT PETITION NO. 4163 OF 1998 Shri Sakharam Ganpati Pisal ...Petitioner Versus Sou. Anusaya Yeshwantrao Mandhare & Others ...Respondents Mr. Sanjay Kshirsagar for the Petitioner Mr.Vivek Salunkhe h/f. P.B.Shah for the Respondent No.1. CORAM:- R.Y.GANOO, J. DATED:- 26th SEPTEMBER, 2011. P.C. 1. The respondent no.1 herein, namely Anusaya has filed Regular Civil Suit No.36 of 1984 against many persons including the present petitioner Sakharam, who is shown as defendant no.4 in the said suit. The said suit was filed in the Court of Civil Judge, Junior Division, at Wai, seeking partition in respect of certain lands which are set out in the prayer clause. The respondent no.1 subsequently filed application below Exhibit 99 praying that the property bearing Gat No.3030 situated at Village Bavdhan, Taluka Vai, District Satara be 2 also added as property in the list of properties in respect of which partition is sought. That application was granted by the learned Civil Judge, Junior Division, Wai, by his Order dated 9.3.1998. 2. Being aggrieved by the said Order dated 9.3.1998, the original defendant no.4 i.e. the present petitioner has filed this petition. 3. I have heard learned Advocate for the petitioner as well as learned Advocate for the respondent no.1. Learned Advocate for the petitioner had pointed out to this Court that the respondent no.1 in the present petition has filed Regular Civil Suit No.256 of 1982 in the Court of Civil Judge, Junior Division, Wai, District Satara. Certain relief in the said suit as alternate prayer is sought by the respondent no.1 being the plaintiff in the said suit. He pointed out that the first part of the prayer in the said suit relates to Gat No.3030, Village Bavdhan, Taluka Wai, District Satara i.e. the property in respect of which application below Exhibit 99 was filed. He pointed out that after the first clause of prayer clause, an alternate prayer is made. The text of the same is as under” “In the alternate plaintiff be awarded one forth share at the 3 time of partition and separate possession. In case partition is not feasible, it be done by applying the provisions of Indian Partnership Act.” It is common ground that the aforesaid alternate prayer relates to Gat No.3030, Village Bavdhan, Taluka Vai, District Satara. At the time of considering the aforesaid Writ Petition No.416/1998 I tried to find out from learned Advocate Mr. Salunkhe as to how the partition can be sought in respect of Gat No.3030, Village Bavdhan, Taluka Vai, District Satara, in both the suits i.e. Regular Civil Suit No.256 of 1982 as well as Regular Civil Suit No.36 of 1984, if the amendment application is favourably granted. It was pointed out to learned Counsel Mr.Salunkhe that in respect of partition of the principal property there can be only one suit and the second suit cannot be prosecuted. On hearing this expression, learned Advocate for the respondent no.1 submitted that the respondent no.1 who is plaintiff in Regular Civil Suit No.256 of 1982 be permitted to withdraw the alternate prayer, the text of which is quoted earlier and once that is done, the present challenge to the impugned order dated 9.2.1998 will not survive as the respondent no.1 case that the partition is required to be effected in respect of Gat No.3030 can be considered by the court in Regular Civil Suit No.36 of 1984. 4 4. Request made by learned Advocate for the respondent no.1 is fair. Accordingly, respondent no.1 in this petition who is plaintiff in Regular Civil Suit No 256 of 1982 being suit pending on the file of learned Civil Judge, Junior Division, Wai, District Satara is permitted to withdraw the prayer, the text of which is as under: “In alternate, plaintiff be awarded 1/4th share at the time of partition and separate possession and in case partition is not feasible it be done by applying the provisions of Indian Partition Act” 5. The respondent no.1 shall make a formal application before the learned Civil Judge, Junior Division, District Wai, for deletion of the alternate prayer, by tendering a copy of this order. Once that is done, the Regular Civil Suit No.256 of 1982 shall be conducted to decide the following prayer: “ As described in para 3 the Gift Deed in favour of the plaintiff be executed from defendant nos.1 to 2 and in default it be executed in Execution Proceeding through the Commissioner and the possession be given to the plaintiff” 5 6. In view of the aforesaid order, the aforesaid petition No.4163 of 1998 does not survive. The respondent no.1 shall carry out the amendment in terms of order dated 9.2.1998 on or before 14.10.2011. At the time of carrying out aforesaid amendment, the respondent no.1 shall present to the learned Civil Judge, Junior Division, Wai, copy of this order so that he can permit the respondent no.1 to carry out amendment. All questions concerning the trial of Regular Civil Suit No.36 of 1984 are left open. The learned Civil Judge, Junior Division, at Wai, shall entertain the suit on merits and decide the same in accordance with the provisions of law. 7. Petition stands disposed of in above terms with no order as to costs. 8. Now, that the picture is clear, on account of disposal of Writ Petition No.4153 of 1998 by order dated 14.9.2011 and disposal of Writ Petition No.4163 of 1998, the learned Civil Judge, Junior Division, Wai, shall take steps to give priority to these two suits for disposal in accordance with the provisions of law. (R.Y.GANOO, J.)