1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6893 OF 2007 Sopan Abaji Pol ..Petitioner V/s. Dattu Rambhao Adake & ors. ..Respondents Ms.Smita Gaidhani i/b.Mr.Pandurang Abaji Pol, advocate, for petitioner Mr.A.P.Kulkarni, advocate, for the respondent No.1, 3 and 4 CORAM : S.C.DHARMADHIKARI, J. DATE : 12TH MARCH, 2008 P.C. . The petitioner before me is the original defendant No.4 in a suit for partition. The defendant Nos.2 and 3 in that suit filed an application before the Trial Court for transposing them as plaintiffs. The grievance of the petitioner/original defendant No.4 before me is that the Court could not have ordered transposition. The suit was for partition. Before the same was granted necessary requirement in law, for such a relief to be granted, had not been satisfied. The submission is that the provisions 2 which are contained in the Code of Civil Procedure for transposition are Order 1, Rule 10 and Order 23, Rule 1A. Both contemplate satisfaction of the Court. Thus, on mere apprehension that the plaintiff and defendant No.4 are likely to collude with each other, the transposition of defendant Nos.2 and 3 as plaintiffs could not have been directed by the Trial Court. 2. I have perused the application for transposition preferred by defendant Nos.2 and 3. The plaint itself proceeds the basis that the Agreement/Sale Deed between defendant Nos.1 and 4 would not bind the plaintiff. Therefore, there was no case of any apprehension that the defendant No.4 and plaintiff would collude and defeat the rights of the other defendants. That apart, merely stating that a compromise may in all probability take place insofar as plaintiff and defendant No.4 are concerned, was no ground to grant the prayer. More so, when petitioner/defendant No.4 denied that there was any compromise or arrangement. 3 3. There was absolutely no justification and merely because plaintiff did not oppose the request does not mean that court should have granted it. This is a suit for partition and all sharers will have to be given their share, even if plaintiff relinquishs his share, in the joint family property. That apart, defendant Nos.2 and 3, who have been transposed, can always continue as defendant Nos.2 and 3 and support the plaintiff or otherwise ensure that the suit claim is not defeated. There are ample opportunities available to them and therefore, assuming that there was some power same should not have been exercised in the peculiar facts of this case. 4. In the result, Writ Petition succeeds. Impugned order is quashed and set aside. It is directed that defendant Nos.2 and 3 are at liberty to file a pursis in the Trial Court adopting averments in the plaint and stating that they are supporting plaintiff. So also, defendant Nos.2 and 3 can always come and depose in support of the case set up by the plaintiff when summoned. In such 4 circumstances, there is enough safe guard and protection insofar as plaintiff and defendant Nos.2 and 3 are concerned. With this clarification Writ Petition stands disposed of. Needless to state merely because the Trial Courts ordered that plaintiff and defendant Nos.2 and 3 are supporting each other does not mean that they are precluded from filing a pursis as aforesaid or being summoned and deposing as witness. (S.C.DHARMADHIKARI, J.)