:1: :1: :1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 323 OF 2008 Shri Bhauso Sadhu Yadav and Ors. ...Petitioners Versus Shri Babu Sadu Yadav and Ors. ....Respondents ====== Mrs.J.P.Arolkar Adv. for the petitioners. Mr.S.Mirajkar Adv. for respondent nos.1, 2, 4A to 4E. CORAM: S.C.DHARMADHIKARI, J. DATED: 30TH JANUARY, 2008. P.C. P.C. P.C. : : : 1. This Writ petition is directed against an order passed by the Trial court refusing to take cognisance of the request of the petitioner that the suit is not maintainable. 2. The contention is that the suit is filed for partition and separate possession of one-third share of the plaintiffs and therefore proper court-fee should have been paid. However, the court fees is paid on the :2: :2: :2: land. 3. The court has expressed a view that while claming partition, the plaintiffs have prayed that the possession and enjoyment in the house and open space, so also, the western half-portion of the said land may be kept as it is and remaining eastern half portion of the land may be divided equally to effect partition. 4. This is an application which is misconceived at this stage. The maintainability of the suit is an aspect which must be gone into at the hearing of the suit itself. It is not as if the petitioners are without remedy. They can, by raising appropriate pleas in the Written Statement request the Trial Court to frame the issue of maintainability of the suit, and I have no doubt in my mind, that the Trial Court will accordingly do it, if the pleadings in that behalf are on record. In such circumstances, and when the issue of maintainability is not concluded by the impugned order, there is no reason to interfere. Petition dismissed. No costs. sd/- :3: :3: :3: *******