{1} wp149710.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1497 OF 2010 1 Sau.Mangala w/o Bhujangrao Ogle, age: 55 years, Occ: Household and agriculture; 2 Dattatraya Tukaram Ogale, age: 50 years, Occ: Agriculture; Both R/o Pedgaon, Tq.Shrigonda, District Ahmednagar. Petitioners Versus 1 Dastgir Dalubhai Inamdar, age: 55 years, Occ: Agriculture, R/o Shedgaon (Takli), Tq.Shrigonda, District Ahmednagar. 2 Maharashtra Rajya Sahakari Krishi and Gramin Vikas Bank, Branch Shrigonda, Tq.Shrigonda, District Ahmednagar. Respondents Mr.A.D.Sonawane, advocate holding for Mr.V.D.Hon, advocate for the petitioners. Mr.N.V.Gaware, advocate for respondent no.1. Respondent No.2 served. CORAM : R.M.BORDE, J. DATE : 28 th January, 2011 ORAL JUDGMENT: {2} wp149710.odt 1 Heard learned Counsel for respective parties. Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties. 2 During continuance of the suit, it was pointed out to the trial Court that defendant no.2 had expired and as such it was urged by plaintiffs that legal heirs of concerned defendant are required to be brought on record. The trial Court was, therefore, requested to adjourn the matter with a view to facilitate plaintiffs to present a proper application. However, the trial Court, suo motu, passed an order below Exhibit-1 in Regular Civil Suit No.228 of 2000, recording therein that the suit presented by plaintiffs is simplicitor for injunction and the cause is personal against concerned defendant and further that, it is not necessary for the plaintiff to bring on record legal heirs of concerned defendant. The trial Court, therefore, directed remaining defendants to adduce further evidence. The order passed by the trial Court on 28.01.2010, below Exhibit-1 in R.C.S. No.228/2000, is subject matter of challenge in this petition. 3 The view adopted by the trial Court is erroneous for the reason that the plaintiffs are claiming decree of perpetual injunction restraining defendants, their agents, servants or anybody claiming through or under them, from interfering in peaceful possession of plaintiffs. It is for the plaintiffs to establish {3} wp149710.odt as to what acts the legal heirs of concerned defendant have committed, which amount to creating obstruction in the possession of the plaintiffs. The trial Court, on its own, ought not to have passed an order prohibiting the plaintiffs from presenting a suitable application for bringing on record legal heirs of deceased defendant. The order passed by the trial Court is, therefore, liable to be quashed and set aside. 4 In the result, the order dated 28.01.2010, passed by Civil Judge, Senior Division, Shrigonda, below Exhibit-1 in R.C.S. No.228/2000, is quashed and set aside. It would be open for the plaintiffs to present a proper application seeking impleadment of legal heirs of deceased defendant and it would also be open for the plaintiffs to seek condonation of delay in bringing legal heirs of deceased defendant on record. The trial Court may consider such an application, if presented by plaintiffs, in accordance with provisions of law and after considering the objection, if any, by the defendants, already on record of suit. 5 In view of the directions referred to above, Rule is accordingly made absolute. In the facts and circumstances of this case, there shall be no order as to costs. R.M.BORDE JUDGE adb/wp149710