(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 1591 OF 2011 Shri Namdeo s/o. Gyanoba Kakde, Age : 71 years, Occupation : Agriculture, R/o. Tandulja, Taluka & District : Latur, .. Petitioners and 2 others. (Original defendants) versus Mokshada d/o. Namdeo Kakde, Age : 39 years, Occupation : Household, R/o. Barshi, Taluka : Barshi, Wane Plot, Near Cancer Hospital, Khade Wada, Barshi, .. Respondent District : Solapur. (Original plaintiff) ....................... Mr. Milind M. Patil (Beedkar), Advocate, for the petitioner. ........................ CORAM : B.P. DHARMADHIKARI, J. DATE : 9TH MARCH 2011 (2) COURT'S ORDER : 1. Heard Adv. Mr. M.M. Patil (Beedkar), appearing for the petitioners / original defendants. 2. The petitioners have challenged the order dated 12-10-2010, passed by the learned 10th Joint Civil Judge (Junior Division), Latur, below Exhibit 38 in Regular Civil Suit No. 359/2009, thereby rejecting the application filed by the petitioners seeking addition of parties to the suit. 3. Adv. Mr. M.M. Patil (Beedkar) points out that in a suit for partition and separate possession, when share of joint family property given to plaintiff is shown to have been sold to third persons, for effective adjudication, those third persons ought to have been impleaded as party defendants to the suit. He invites attention to finding recorded by the trial court in paragraph 7 to the effect that the property sold is not a joint family property of the plaintiff and her father i.e. defendant no.1 in the suit. 4. It is apparent that if the defendants succeed in establishing their defence, the trial court is competent to pass appropriate orders and if at that stage it is handicapped, as (3) necessary parties are not before it, it can also dismiss the suit. The finding in paragraph 7 of trial court's order are only for the purposes of deciding application at Exhibit 38 and the defence available to the present petitioners is not lost thereby. That defence needs to be appreciated after parties lead their respective evidence and after hearing their arguments. 5. I, therefore, do not find any prejudice caused to the present petitioners by the impugned order. The petition is, therefore, no entertained. 6. In the result, the petition is dismissed. No costs. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp1591