1 W.P. 7188.2011 - [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7188 OF 2011 Kashinath S/o Gnyandeo Bhavale Age : 50 Yrs., Occ. Agriculture, R/o : Shahajanpur, Tq. Georai, Dist. Beed. ..... PETITIONER V E R S U S 1. Sarjerao S/o Gnyandeo Bhavale Age : 65 Yrs., Occ. Agriculture, R/o : Dhangarwadi Taraf Manjarsuba, Tq. and Dist. Beed. 2. Maharudra S/o Gnyandeo Bhavale Age : 40 Yrs., Occ. Agriculture, R/o : Shahajanpur, Tq. Georai, Dist. Beed. 3. Mahadev S/o Sarjerao Bhavale Age : 30 Yrs., Occ. Agriculture, R/o : Dhangarwadi Taraf Manjarsuba, Tq. and Dist. Beed. 4. Atmaram S/o Gnyandeo Bhavale Age : 45 Yrs., Occ. Agriculture, R/o : Shahajanpur, Tq. Georai, Dist. Beed. ..... RESPONDENTS Mr. R.P.Dhase, Advocate for the petitioner. Mr. R.V.Deshmukh and Mr. S.S. Deshmukh, Advocates for Resp. Nos. 1 to 3. 2 W.P. 7188.2011 - [ J ] CORAM : S.V.GANGAPURWALA, J. DATE OF JUDGMENT : 14/12/2011. ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the respective parties, taken up for final hearing. 2. The present petitioner is the original plaintiff, who had filed Suit for partition and separate possession. The defendants have filed Written Statement and averred that some of the properties are their self- acquired properties and some of the properties are joint family properties. During the pendency of the Suit, the present petitioner filed pursis for withdrawal of the Suit. The trial Court rejected the said pursis. Aggrieved thereby, the present Writ Petition is filed. 3. Mr. Dhase, the learned counsel for the petitioner submits that when the petitioner is withdrawing the Suit unconditionally, then in such circumstances, the Court could not have rejected the said pursis. The learned counsel relies on the Judgment of the learned Single Judge of this Court in the case of M/s Mahadkar Agency and another V/s Padmakar Achanna Shetty reported in 2002 ( 4 ) ALL MR – 352. 4. Mr. Deshmukh, the learned counsel for respondent nos. 1 to 3 3 W.P. 7188.2011 - [ J ] submits that the Suit is for partition and separate possession, where each and every party is in a position of the plaintiff. The plaintiff does not have right to withdraw the Suit unconditionally. The plaintiff in the said pursis made wrong statement that the parties have compromised the matter. The respondents in their Say have denied the said fact. The trial Court has rightly passed the order. The learned counsel relies on the Judgment of the learned Single Judge of this Court in the case of Manohar Singh V/s Mst. Sardar Bai and others reported in AIR 1987 Rajasthan – 177. 5. No doubt, in a Suit for partition and separate possession, each and every party is in a position of the plaintiff. In the present case, a pursis is filed by the petitioner that he wants to withdraw the Suit. No liberty is sought. The defendants have not filed any application for transposition as plaintiffs. When no liberty is sought by the plaintiff for filing a fresh Suit, the withdrawal of the Suit amounts to dismissal. The reason stated in the pursis is denied by the defendants in their Say. However, no reason is required for allowing the plaintiff to withdraw his Suit if no liberty is sought. Even otherwise, if the respondents/defendants have a right, they shall be entitled to file separate Suit in respect of the said properties, in case they so desire. 4 W.P. 7188.2011 - [ J ] 6. In light of the above, the Writ Petition is allowed. The Suit bearing R.C.S. No. 77 of 2010 is dismissed as withdrawn. Taking into account the relations between the parties, there shall be no order as to costs. 7. Rule is accordingly made absolute in above terms. No costs. [ S.V. GANGAPURWALA,J. ] KNP/W.P. 7188.2011 - [ J ]