ORDER :

The petitioner/defendant No.24 in O.S.No.274/2006 on the file of the I Additional Senior Civil Judge and CJM, Dharwad is before this Court under Article 227 of the Constitution of India praying to quash the order dated 18.07.2017 passed on I.A. filed under Order 1 Rule 10 of CPC in O.S.No.274/2006.

2. The suit was for partition and separate possession and consequential reliefs. The petitioner was arrayed as defendant No.24 in the suit. The plaintiff No.1 was the father of defendant No.24. Plaintiff No.1 father of petitioner/defendant No.24 died on 04.06.2016. Subsequently, the petitioner/defendant No.24 filed an application under Order 1 Rule 10 of CPC praying the Court to transpose him as plaintiff in the suit in place of the plaintiff No.1.

In the affidavit accompanying the application, it is stated that he is the son of plaintiff No.1 and he is the legal heir of deceased plaintiff No.1. Further, it is stated that at the time of filing the suit as the petitioner/defendant No.24 was not available to sign the vakalath and case papers, he is arrayed as defendant No.24. Hence, he has sought for transposition of himself as plaintiff No.1. The said application was opposed by filing objection by defendant No.9. In the objection it is contended that there being conflict of interest between the petitioner/defendant No.24 and his father plaintiff No.1, the petitioner/defendant No.24 cannot seek to transpose himself as plaintiff No.1. The plaintiffs’ statement in the affidavit itself is sufficient to reject the application of the petitioner. The trial Court under the impugned order rejected the I.A. filed under Order 1 Rule 10 of CPC to transpose the petitioner/defendant No.24 as plaintiff No.1.

3. Heard the learned counsel for the petitioner, learned counsel for respondent No.1, Sri.A.M.Gundawade, learned counsel for respondents No.3 to 5, 7 to 9, 11, 13 and 23 to

26.

4. The learned counsel for the petitioner would submit that the petitioner is arrayed as defendant No.24 in the suit, as the plaintiff No.1-father of the petitioner/defendant No.24 died on 04.06.2016, necessitated the petitioner to file an application to transpose himself as plaintiff No.1. He submits that there is no conflict of interest between him and his father. Even though in the affidavit it is stated that there was conflict of interest between the petitioner and his father, it is not so and it only refers conflict prior to filing of suit. The written statement filed by the petitioner/defendant No.24 would make it clear that there was no conflict of interest and the defendant No.24 had filed written statement to divide the properties and to grant his share. The trial Court without looking into the written statement, dismissed the application holding that there is conflict of interest based on the objection of defendant No.9, which is wholly erroneous.

5. Per contra, the learned counsel for the respondents would submit that the suit is one for partition. It is stated that the statement made in the affidavit that there is conflict of interest between him and his father itself is sufficient to reject the application and accordingly, the trial Court has rejected the application. The learned counsel for the respondents justifies the order passed by the trial Court.

6. Having heard the learned counsels for the parties and on perusal of the material on record, I am of the view that the trial court has committed an error in rejecting the application filed under Order 1 Rule 10 of CPC of the petitioner/defendant No.24 to transpose him as plaintiff No.1. The suit is one for partition and separate possession. In a suit for partition, everyone would be treated as plaintiff and share in the properties would be allotted to each of them. In the instant case, the defendant No.24/petitioner herein had filed the written statement and at para 24 stated as follows:

“22. The Def endant No.24 submits that as he is also one of the members of the coparceaners and has right, title