wp2302.09 -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2302 OF 2009 Dada Mahadu Jogdand Age 52 years, Occ. Agriculture, R/o. Arvi, Tq. Shrigonda, District Ahmednagar ...Petitioner Versus 1 Manohar s/o Baban Jogdand Age 40 years, Occ. Service, R/o. Takrarwadi, Tq. Indapur District Pune 2 Bhiku s/o Nathu Jogdand (deleted asper permission granted on 5.8.2010) 3 Walmik Mahadu Jogdand, Age 45 years, Occ. Agri & Labourer R/o. Arvi, Tq. Shrigonda, District Ahmednagar 4 Rama Mahadu Jogdand, Age 45 years, Occ. Agri and Labour R/o. Mandavgan Fatata, Tq. Shirur, District Pune 5 Milind Mahadu Jogdand, Age 45 years, Occ. Agri & Labour R/o. Warvand, Tq. Daund, District Pune 6 Sou. Hausabai Sambhaji Gaikwad, Age 42 years, Occ. Household, R/o. Shahad, D.S. Patel, Mohane Road, Kalyan, District Thane 7 Sou. Sanjana Pramod Pansare, age 40 years, Occ. Household, wp2302.09 -2- R/o. Warvand, Tq. Daund, District Pune 8 Smt. Yamunabai Mahadu Jogdand, Age 50 years, Occ. Nil, R/o. Arvi, Tq. Shrigonda, District Ahmednagar 9 Santosh Balu Gaikwad, Age 21 years, Occ. Service, 10 Bibhishan Balu Gaikwad, Age 19 years, Occ. Service, 11 Amit Balu Gaikwad, Age 15 years, Occ. Education 12 Balu Shivaji Gaikwad, Age 45 years, Occ. Agri., No. 11 u/g of Balu Shivaji Gaikwad, R. Nos. 9 to 12 R/o. Nimone, Tq. Shirur, District Pune 13 Kondiba Dagdu Jogdand, Age 75 years, Occ. Agri., 14 Dada Ganpati Jogdand, Age 65 years, Occ. Agri. 15 Gulab Bhama Jogdand, Age 70 years, Occ. Agri. (R. Nos. 13 to 15 are deleted as per order dated 5.8.2010) 16 Shrirang Babu Jogdand, Age 65 years, Occ. Agri 17 Shankar Vishnu Jogdand, Age 65 years, Occ. Agri 18 Jhumbar Vishnu Jogdand, Age 50 years, Occ. Agri 19 Suresh Vishnu Jogdand, Age 40 years, Occ. Agri 20 Rakhmaji Vishnu Jogdand, Age 38 years, Occ. Agri wp2302.09 -3- R. Nos. 13 to 20 R/o. Arvi, Tq. Shrigonda, District Ahmednagar ...Respondents ..... Mr. Niteen V. Gaware, advocate for the petitioner Mr. V.P. Latange, advocate for respondent Nos.1 to 16 ..... CORAM: S.V. GANGAPURWALA, J. DATED: 16TH AUGUST, 2011 JUDGMENT:- 1 The present respondents have filed the suit for partition and separate possession. During pendency of suit, defendant No.2 Mahadu died on 15.2.2005. Thereafter, the present petitioner alongwith two others came on record and filed written statement. In view of the fact that present petitioner alongwith two others appeared and filed written statement, the plaintiff did not press the application for bringing legal heirs of defendant No.2 on record. Nirmala, daughter of Mahadu had also died in the year 1999. Her legal heirs were not brought on record. Thereafter, the plaintiff moved an application invoking Order 1 Rule 10(2) of C.P.C. for bringing legal heirs on record, as parties to the suit. The said application is allowed. One of heir of original defendant No.2 has assailed the said order in the present writ petition. wp2302.09 -4- 2 Shri Gaware, learned counsel for the petitioner submits that in fact when the suit stood abated against deceased defendant No.2, even the plaintiff had filed an application for condonation of delay and bringing legal heirs on record, the same was not pressed, still the plaintiff filed an application under Order 1 Rule 10(2) of C.P.C. the Court could not have entertained the said application. The persons sought to be added as parties could have only been brought on record as legal heirs and not as independent parties. The limitation prescribed in Order XXII cannot be negated by invoking Order I Rule 10(2) of C.P.C. Learned counsel contends that even those persons who are said to be legal heirs of Nirmala, daughter of Mahadu, cannot claim better right and they can only claim their right as legal heirs and not as independent parties. According to the learned counsel, the procedure adopted is not countenance by law. 3 Shri Shinde, learned counsel for the original plaintiff submits that in fact the suit is for partition and separate possession. The petitioner himself came forward to be added as party as legal heirs of defendant No.2 and even filed written statement. In view of that the plaintiff did not press the application for bringing legal heir on record. However, as there should not be any technical flaw, the application was filed under Order I Rule 10(2) of C.P.C. to add legal heirs of Nirmala, daughter of Mahadu the Court has rightly considered the same. wp2302.09 -5- 4 The suit is for partition and separate possession where each and every party is in position of the plaintiff. The defendant No.2 had died in the year 2005. The application was made by the plaintiff for bringing legal heirs on record but it appears that before the said application could be decided the legal heirs of the original defendant No.2 themselves made appearance and filed written statement on record. In view of the fact that legal heirs of defendant No.2 had already appeared on record, the plaintiff did not press the application. The question remained of legal heirs of Nirmala i.e. the defendant No. 2 who died in the year 1999. The plaintiff for the said purpose filed an application under Order 1 Rule 10(2) of C.P.C. The legal heirs of Nirmala cannot claim better right than what Nirmala could have claimed. Even Nirmala daughter of Mahadu could not have claimed any independent right in the property. The same would be qua the defendant No.2 Mahadu. As such, it would not make any difference even if the legal heirs of Nirmala is added as party. None the less, heir of defendant No.2 has filed the present petition and legal heirs of Nirmala have not agitated the order. In the light of that it cannot be said that any prejudice is caused to the petitioner. Moreover, as written statement is already filed on record by the present petitioner and the added parties have not made any grievance about them being added as parties, I do not feel that any error has been committed by wp2302.09 -6- the court below while passing the impugned order. It is for the parties who have been added subsequently to agitate or make a grievance about the order impugned and not the present petitioners who had sou moto appeared and filed written statement. 5 In the light of the above, writ petition is dismissed. Rule discharged. However, with no order as to costs. *****