1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 4991/2010 (Dr.Ahsok Suryabhanji Gajbhiye VERSUS Smt.Nirmalabai Walmik Khedkar & others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri S.P. Kshirsagar, counsel for the petitioner. Shri S.D. Malke, counsel for the R-6. CORAM : SMT. VASANTI A. NAIK, J. DATE : MARCH 4 , 2011 . By this petition, the petitioner impugns the order passed by the 5th Joint Civil Judge (Senior Division), Nagpur on 30.08.2010 rejecting an application filed by the petitioner for passing a preliminary decree for partition in his favour in regard to 11/12th share in the suit property transferred in his favour. The petitioner is the original defendant no.6. The plaintiff had filed a suit for a declaration and permanent injunction. The defendant no.6/petitioner filed a counter claim for partition and separate possession. In reply to the counter claim, it appears that the defendant nos.1 to 5 had admitted that a sale-deed was executed in respect of their share in the suit property in favour of defendant no.6 on 04.10.2008. The defendant nos.1 to 5 admitted that the defendant no.1 sold a part of the suit property to the defendant no.6/petitioner and the defendant nos.2 to 5 consented for the execution of the sale-deed. Thus, it was the case of the petitioner/defendant no.6 that he had purchased 2 11/12th share in the suit property and, hence, the Court may pass a preliminary decree of partition in favour of defendant no.6 in regard to 11/12th share in the suit property transferred by defendant nos.1 to 5 in his favour. The application filed by the defendant no.6/ petitioner was strongly opposed by the plaintiff. It was the case of the plaintiff that the defendant nos.1 to 5 were in collusion with the defendant no.6 and the plaintiff had challenged the sale-deed executed by the defendant no.1, allegedly with the consent of the defendant nos.2 to 5 in favour of defendant no.6. The plaintiff stated in the reply that the defendant no.6/petitioner did not get any right to seek the possession of the property to the extent of 11/12th share in the suit property. In view of an admission given by the defendant nos.1 to 5 to the counter claim filed by the defendant no.6/petitioner, in collusion with the defendant no.6,, according to the plaintiff, no preliminary decree could be passed in favour of the defendant no.6/petitioner. The trial Court, by the impugned order dated 30.08.2010, rejected the application filed by the petitioner. The order passed by the trial Court on 30.08.2010 is just and proper and calls for no interference in exercise of the writ jurisdiction. The trial Court rightly held that it was clear from the pleadings in the plaint that the plaintiff was challenging the sale-deed executed by the defendant no.1 in favour of the defendant no.6. Though the defendant nos.1 to 5 had admitted the sale of property in favour of the defendant no.6/petitioner, the trial Court rightly considered the fact that it was the plaintiff’s case that the defendant nos.1 to 5 and the defendant no.6 were in collusion with each 3 other. In the written statement filed to the counter claim, the plaintiff had specifically denied that defendant no.1- Nirmalabai was the exclusive owner to the extent of half share in the suit property and in such circumstances, the trial Court held that unless and until the share of each party is demarcated and separated, there was no question of passing the judgment/preliminary decree of partition, in favour of the defendant no.6. Since the plaintiff was strongly opposing the pleadings in the counter claim, the trial Court rightly held that it was not the case where the opposite parties were admitting the claims of each other. The judgments reported in (2010) 4 SCC 753 (Karam Kapahi & others Versus Lal Chand Public Charitable Trust & another) and (2004) 7 SCC 277 (Inder Sain Bedi (Dead) by Lrs. Versus Chopra Electricals) are clearly distinguishable on facts and cannot be applied to the facts of the case. In the result, the writ petition fails and is dismissed with no order as to costs. JUDGE APTE