1 wp10884.10 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 10884 OF 2010 _____________________________________________________________________ Office Notes, Office | Memoranda of Coram, | appearances, Court's | Court’s or Judge’s orders orders or | directions and | Registrar's orders | _____________________________________________________________________ Mr. Hemant Surve, Advocate for the petitioners. Mr. S.R. Deshpande, Advocate for respondent. 1. Heard Advocates Mr. Surve for petitioners and Mr. Deshpande for respondent. 2. The contention of Advocate Mr. Surve is that in impugned order, the trial Court has overlooked the arguments advanced by the petitioners i.e. defendant nos.7 to 12 and erroneously recorded them as not present. He therefore states that one of the issues i.e. issue no.7 as sought for by the respondent-plaintiff also need not have been framed. 3. Advocate Mr. Deshmukh for respondent-plaintiff on the other hand states that when the issues were originally framed vide Exhibit-53/B, written statement of defendant nos. 7 to 12 was not on record. In the said written statement, the said defendants have come up with a specific case of partition between family prior to 1971 and separate CL-III licence and separate business since 2 wp10884.10 1973. His contention is, in view of this specific defence, the issue as framed is really necessary in the matter. 4. After hearing both the Counsel, I find that issue no.1 as already framed which requires scrutiny into challenge of present respondent-plaintiff that the suit property was/is undivided joint Hindu family property and in view of that scrutiny, the question whether there was partition prior to 1971 or then in 1965, necessarily can also be looked into by way of implication. 5. By framing separate issue about the alleged contention vide issue no. `C', unnecessary confusion may be created in the trial. 6. I therefore find the issue as framed superfluous. The said contention is already covered under issue no.1 as already framed. 7. The impugned order dated 05.10.2010 passed below Exhibit-65 by the 2nd Joint Civil Judge, Senior Division, Aurangabad is therefore quashed and set aside. Petition is allowed accordingly. No costs. (B.P. DHARMADHIKARI) JUDGE. 04.02.2011 gas/wp10884.10