1 WP 4051.2011 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4051 OF 2011 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr. S.P.Brahme , Advocate for the Petitioner. .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 14/06/2011 PER COURT : 1. The petitioner is the original plaintiff, who had filed Suit for partition, possession, injunction and declaration. The issues were framed by the learned trial court on 17/10/2009. The plaintiff led his evidence. After the closure of the evidence of the plaintiff, the plaintiff moved an application for recasting of issues and framing of additional issue to the effect, as to whether the defendant no. 1 proves that his legally wedded wife Sumanbai expired in the year 1966. Sumanbai is the mother of the plaintiff, so also the prayer for recasting of issues in the nature that whether the defendant no. 1 proves that deceased Maganbai was his legally wedded wife. The trial court rejected the said 2 WP 4051.2011 application. Aggrieved thereby, the present petition is filed. 2. Mr. Brahme, the learned counsel for the petitioner submits that the date of death of Sumanbai is relevant. The plaintiff has pleaded that Sumanbai was alive till 16/4/1993. The defendants have pleaded that Sumanbai expired in the year 1966. In light of the pleadings of the parties, the issue regarding date of death of Sumanbai is relevant and material for effective adjudication, so also, whether Maganbai is the legally wedded wife of defendant no. 1 Shivaji. According to the learned counsel, the issues are to be framed keeping in mind the pleadings of the parties. A fact affirmed by one party and denied by another, would give rise to issue. The learned counsel further contends that the reasonings given by the trial court while rejecting the application can not be countenanced. 3. The trial Court has framed issues. Issue no. 2 reads as under : “ Whether defendant no. 2 Satish proves that deceased Maganbai was the legally wedded wife of defendant no. 1 Shivajirao ? ” 3 WP 4051.2011 4. The said issue encompasses the material dispute between the parties. For proving the legality of marriage between Shivajirao and Maganbai, it will have to be proved that the same was not during the life time of Sumanbai. The evidence would be required to be led by both the parties on the basis of the pleadings of the parties. The parties to the dispute know the nature of the dispute and proof of their case. I do not feel that there is necessity to frame any additional issue or recast any issue. 5. In light of the above, no interference is called for. The Writ Petition is dismissed, however, with no order as to costs. [ S.V. GANGAPURWALA,J. ] KNP/WP 4051.2011