* 1 * WP­7309.2003 24.9.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7309 OF 2003 Nathu Bhika Toke ...... Petitioner V/S. Sudam Bhika Toke and anr. ..... Respondents * * * * * * Mr. N.R. Bubna, Advocate for the petitioner. Respondent no.1 and advocate absent. Mr. M.S. Lagu, Advocate for the respondent no.2. Coram : Smt. R.P. SondurBaldota, J. 24 September, 2010. P.C. : 1. This Writ Petition filed under Article 227 of Constitution of India seeks quashing of the order dated 3rd September 2002 passed by the Joint Civil Judge Senior Division, Khed rejecting the intervention application filed by the petitioner in Regular Civil Suit No. 37 of 1996. The notice of the petition has been served upon respondent no.1 who is absent despite service. * 2 * WP­7309.2003 24.9.2010 2. The parties to the petition are brothers. There was a suit being Regular Civil Suit No. 138 of 1983 filed by the respondents for partition and separate possession of the joint family property. By the decree dated 27th October, 1994 passed in the suit, it was declared that each brother has one­third share in the joint family properties. However, before the proceedings of partition could be completed and the parties put in possession of their respective shares of their joint family property, respondent no.1 filed Suit No. 37 of 1996 against respondent no.2 alone claiming share in the ½ house property bearing No.1291 and for its possession. The petitioner, therefore, filed intervention application claiming that House no.1291 was constructed with the joint family income on the land bearing Gat No.300 (new Gat No.301) after demolishing House No. 950 and 957 which was subject matter of Regular Civil Suit No. 138 of 1983, as such he has 1/3rd share in House No.1291 alongwith the respondents. 3. The petitioner’s application came to be rejected on the ground that the dispute raised in the suit was only between the respondents inter­se and the petitioner is not a necessary party to the suit. * 3 * WP­7309.2003 24.9.2010 The trial court was also of the opinion that there was delay on the part of the petitioner in filing the application for intervention. The delay disentitled him to the relief. 4. Considering the averments made in the application, the petitioner clearly has interest in the suit pending between the respondents inter­se. The trial court ought to have granted the application filed by the petitioner. Hence, Rule made absolute in terms of prayer clause (a). [Smt. R.P. SondurBaldota, J]