1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.7304 OF 2008 1. Govind S/o.Laxman Kore, Age-35 years, Occu-Agril. 2. Smt.Kalubai W/o.Laxman Kore, Age-65 years, Occu-Household and agriculture Both R/o.Wasangaon, Taluka and District Latur PETITIONERS VERSUS 1. Balaji S/o.Laxman Kore, Age-30 years, Occu-Masson, 2. Angad S/o.Laxman Kore, Age-25 years, Occu-Pigmi Agent, 3. Sow.Sudamati W/o.Bhairu Kore, Age-27 years, Occu-Household, All R/o.Wasangaon, Taluka and District : Latur. RESPONDENTS Mr.N.P.Patil (Jamalpurkar), Advocate for petitioners Mr.Dhananjay Deshpande, advocate for respondent no.1 & 2. Respondent no.3 absent even though duly served. (CORAM : A.V.POTDAR, J.) DATE : 16/06/2009 ORAL JUDGMENT : 2 1. Being aggrieved by the order passed below Exh.94 in RCS No. 624/2004, dated 10/10/2008 by 4th Jt.Civil Judge, J.D.Latur, the present writ petition is filed by the original plaintiffs under Article 226, 227 of The Constitution of India. 2. Considering the small question of Law involved which require to be considered in the present writ petition. Rule. 3. Rule made returnable forthwith. 4. By consent of the parties, the writ petition is finally heard at the stage of admission itself. 5. The factual matrix which gave rise to file the present writ petition can be summarized as : Writ petitioners herein have filed RCS No.624/2004 in the Court of Civil Judge, S.D.Latur for partition and separate possession in respect of the suit properties mentioned in plaint para no.2 claiming that this property is the joint family property of the petitioners and respondents. After service of summons, the respondents defendants appeared in the suit and filed their written statement which is at Exh.13 and contested the claim of the petitioners plaintiff for the grounds stated in the written statement. 6. On the basis of these pleadings, it appears that the issues were framed by the Trial Court at Exh.57. It further appears that 3 considering these issues framed by the Trial Court on the basis of pleadings of parties, an application was moved by the petitioner plaintiff herein vide Exh.94 for the alternation/modification of the issues under Order XIV Rule V of CPC with the request to frame the additional issue “Do defendant no.1 & 2 prove that the suit land is their self acquired property”?. After hearing otherside, for the reasons separately recorded, this application was rejected vide order dated 10/10/2008. 7. The issues to be framed as per the procedure laid down under Order XIV Rule I and II on the basis of facts pleaded by the parties in their respective pleadings i.e. in the plaint and in the written statement. This is a suit for partition and separate possession filed by the petitioners plaintiffs about the suit property more particularly described in plaint para no.2 alleging that this property is the joint family property of the plaintiffs and the defendants. The respondents defendants have came with a specific case pleaded in their written statement at Exh.13 para no.2, internal page no.2 that this suit property is their self-acquired property and petitioners have no any interest, right and title in the property. If this is so, the Trial Court ought to have frame the issue “Do the defendants prove that the suit property is their self acquired property?” According to learned advocate for the respondents, on plain reading of the issues framed, issue no.1 covered this aspect. This Court is not in agreement with this submissions as it is the claim of the respondents defendants that the suit property is not a joint family property, but their self 4 acquired property. In the premise, this additional issue ought to be framed. The reasons recorded in rejecting the application by the Learned Trial Court in his order dated 10/10/2008 are not recorded after appropriate consideration of the facts pleaded by the parties to the suit. Hence, it is to be quashed and set aside. Accordingly, the order passed below Exh.94 dated 10/10/2008 is hereby quashed and set aside and the application at Exh.94 is hereby allowed. 8. The rule thus made absolute as indicated above. The writ petition stands disposed of accordingly with no order as to costs. (A.V.POTDAR, J.) khs/wp7304-08