1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD LETTERS PATENT APPEAL NO. 158 OF 2009 IN WRIT PETITION NO. 1003 OF 2007 Govind S/o Ramkrishna Kale, (Died) through legal heirs. A. Shamla W/o Sharad Patil, Age : 55 Years, Occu.: Household, R/o C/o S. K. Patil, 22/6, Janjira Housing Society, Pune. B. Pramila w/o Prabhakar Khambawadkar, Age : 45 Years, Occu. : Household, R/o Gule Colony, Mandar Apartment, Nashik, Dist. Nashik. C. Ku. Nirmala D/o Govindrao Kale, Age : 19 Years, Occu. : Household, R/o C/o Jivan D. Khambaswadkar, RCF 41/487, Chhanod Housind Colony, G-JDC, Vapi, Dist. Bulsar (Gujrat). D. Sow. Ujwala w/o Jivanrao Khambaswadkar, Age : 31 Years, Occu. : Householde, R/o As above. .. .. APPELLANTS Versus 1. Prabhakar S/o Narayanrao Kale, Age : 58 Years, Occu. : Agril., R/o Juna Bazar, Beed, 2 2. Ratnakar S/o Narayanrao Kale, Age : 55 Years, Occu. : Agril. & Service, R/o as above. 3. Kishor S/o Narayanrao Kale, Age : 48 Years, Occu. : Agril., R/o As above. 4. Laxmibai w/o Narayanrao Kale, Age : 79 Years, Occu. : Agril., R/o As above. 5. Vasudevrao S/o Ramkrishnarao Kale, (Died) through legal heirs : 5-A Smt. Sushilabai W/o Vasudevrao Kale, Age : 66 Years, Occu. : Household, R/o Kale Galli, Beed, District Beed. 5-B Jagdish S/o Vasudevrao Kale, Ae : 51 Yeas, Occu. : Agril., R/o As above. 5-C. Ashok S/o Vasudevrao Kale, Age : 47 Years, Occu. : Agril., R/o As Above. 5-D Anil S/o Vasudevrao Kale, Age : 45 Years, Occu. : Agril., R/o As above. 5-E Vijay S/o Vasudevrao Kale, Age : 43 Years, Occu. : Agril., R/o As above. 5-F Sanjay S/o Vasudevrao Kale, Age : 40 Years, Occu. : Agril., R/o As above. 3 5-G Rajendra S/o Vasudevrao Kale, Age : 37 Years, Occu. : Agril., R/o As above. 5-H Sou. Sangita W/o Udayrao Nannaskar, Age : 35 Years, Occu. : Household, R/o Panmangrul, Tq. Akkalkot, Dist. Solapur. 6. Dinkarrao S/o Ramkrishnarao Kale, Age : 76 Years, Occu. : Household, R/o Juna Bazar, Beed, Dist. Beed. 7. Syed Kausar S/o Sayed Afsar, Age : 38 Years, Occu. : Business, R/o New Shahensha Nagar, Beed, District Beed. 8. Ganesh S/o Vasant Jahagirdar, Age : 48 Years, Occu. : Business, R/o Tendalkar Colony, Adarsh Nagar, Beed, Dist. Beed. 9. Sidhakar S/o Haridas Jogdand, Age : 23 Years, Occu. : Business, R/o Jalna Road, Beed, Dist. Beed. 10. Vijayraj S/o Bhimraj Bamb, Age : 46 Years, Occu. : Business, R/o Mantri Galli, Subhash Road, Beed, Dist. Beed. 11. Atul S/o Dayasagar Jain, Major, Occu. : Business, R/o As above. .. .. RESPONDENTS Shri Sunil P. Deshmukh, Advocate for the Appellants. 4 CORAM : B. R. GAVAI, AND N. D. DESHPANDE, JJ. DATE : 31ST AUGUST, 2009. ORAL ORDER [ Per B. R. Gavail, J. ] : 1. The appellants challenge the order dated 02nd July, 2009 to the extent of granting liberty to the respondents herein to file a separate suit. 2. The respondent Nos. 1 to 3 have filed Special Civil Suit No. 212/1985 for partition before the Civil Judge Senior Division, Beed. 3. It appears that, subsequently, the present appellants also filed Regular Civil Suit No. 152/1991 for partition. The said suit was decreed and appeal preferred there against is also rejected. It is also the contention of appellants that, the appellants have also been put in the possession of property in the execution in pursuance of decree passed in Regular Civil Suit No. 152/1991. 4. It is the contention of the appellants that, subsequently an application came to be filed for amendment of Special Civil Suit No. 212/1985, so as to incorporate the properties which were already partitioned vide decree in Regular Civil Suit No. 152/1991. The said amendment application is rejected. Being aggrieved by order dated 30th June, 2009, a writ petition was preferred before the learned Single Judge and learned Single Judge dismissed the said writ 5 petition vide order dated 02nd July, 2009. However, it appears that, subsequently an application came to be filed for recalling the order. While the said application was being considered by learned Trial Judge and oral prayer was made for liberty to file separate suit. Said liberty was granted, hence present appeal. 5. Shri Deshmukh learned counsel appearing on behalf of appellants submits that, in view of liberty granted, blank permission has been granted to the respondents herein to reopen the issue which is already concluded by the decree in Regular Civil Suit No. 152/1991, which is confirmed upto the appellate stage and the execution proceedings in pursuance thereof are also taken the logical end. 6. We find that, the apprehension expressed by the learned counsel for the appellants is totally ill-founded. Learned Single Judge while granting the liberty itself has observed that, no opinion on merits is expressed. It has further been found that, liberty which is granted would be as permissible under the law. It has further been observed that, all the legal aspects are kept open. In that view of the matter, we find that, learned Single Judge sufficiently protected the interest of appellants. The liberty is granted only to file a suit, if it is permissible in the law. In any event, even this Court while exercising writ jurisdiction cannot grant liberty to do, what is not permissible in law. 7. In that view of the matter, we do not find any reason to 6 interfere with the order passed by the learned Single Judge, hence appeal is rejected. [ N. D. DESHPANDE, J.] [ B. R. GAVAI, J.] bsb/August 09