JUDGMENT

Nutan D. Sardessai, J. - The petitioners have taken exception to the order dated 19.08.2017 passed by the Court of the Civil Judge Junior Division, Ponda invoking the jurisdiction of this Court under Article 227 of the Constitution of India.

2. Heard Shri P. Arolkar, learned Advocate for the petitioners who submitted that the respondents had filed the suit for partition claiming right to the property bearing survey nos.9/1 and 10/1 and the petitioners as the defendants had filed their written statement in defence specifically denying the case set up by the respondents including their locus standi to file their suit for partition claiming exclusive right to the properties bearing survey nos.9/1 and 10/1 and that the statement in defence was duly accompanied by the list of documents on which they were relying. The respondents had moved an application seeking interrogatories under Order XI Rule 4 of the Civil Procedure Code which were in the nature of fishing inquiries and when the burden was on the respondents to prove their case and not on the petitioners. The written synopsis were filed on behalf of the respondents and when the application seeking interrogatories should have been under Order XI Rule 11 of the Civil Procedure Code. There was an error by the learned Trial Judge in allowing interrogatories as it did at the instance of the respondents and therefore the impugned order was liable to be quashed and set aside. He placed reliance in Tata Iron Steel Company Limited vs Rajarishi Exports (P) Limited , (1978) LawSuit(Ori) 10, Canara Bank vs. Steron Castings Industries , (1990) LawSuit(Del) 357 and Ali Kader Syud Hossain Ali vs. Gobind Dass , (1890) LawSuit(Cal) 85.

3. Shri Sudin Usgaonkar, learned Senior Advocate appearing on behalf of the respondents submitted at the outset that it was for the petitioners to show how the order under challenge was perverse, without jurisdiction and/or that it had caused injustice to the petitioners. He referred to the plaint, the list of documents relied alongwith it apart from the written statement filed in defence by the petitioners which was vague and there was no basis for such a defence. The impugned order did not call for any interference in exercise of the writ jurisdiction and therefore the petition had to be dismissed. He placed reliance in M/s. Delhi Vanaspati Syndicate vs. K. C. Chawala , (1983) AIR(J&K) 65, P. Balan vs. Central Bank of India, Calicut , (2000) AIR Kerala 24, Dinesh Jagannath Khandelwal vs Kundanlal Perumal Chhabriya & Ors. , (2010) 1 BCR 728 and Maria Margarida Sequeira Fernandes & Ors. vs. Erasmo Jack De Sequeira (Dead) through LRs , (2012) 5 SCC 370.

4. I would consider their contentions, the relevant provisions of the Civil Procedure Code, the judgments relied upon and decide the petition accordingly.

5. The respondents had filed the suit for partition of the properties bearing survey nos.9/1 and 10/1 of Village Kavle on a plea that the property originally belonged to three brothers Ramchandra, Datta and Keshav, all sons of Anant Ram Bakhle and that the respondent no.1 was the grandson of Datta while the petitioners were the legal heirs of Ramchandra and the respondents alongwith the original defendant nos.2 to 4 were the sons of Datta. It was also their specific case that on the death of the wife of Datta, Inventory Proceedings were initiated and by an order dated 10.10.1932, one-third share of the entire suit property was allotted to the said Datta, father of the respondent no.1 and original defendant nos.2 to 5. It was also their case that the petitioners started disturbing the division and they were unable to enjoy their share properly and peacefully constraining them to file the suit for partition in three equal parts and allotment of one third share to the respondent no.1, the original defendant nos.2 to 4 and the petitioners.

6. The respondent no.1 had relied on the list of documents being the order in the Inventory Proceedings dated 10.10.1932