JUDGMENT :

S.M. MODAK, J.

1. Rule. In this petition, the Petitioners/original defendant nos. 1 and 2 have requested this Court to exercise the supervisory jurisdiction under Article 227 of the Constitution of India. They have requested to modify the order passed by the trial Court thereby refusing to recast the issues already framed in the proceedings of Regular Civil Suit No. 449 of 2001.

2. The application to that effect is filed by the defendant no. 1-Balasaheb since deceased through his legal representative Mahesh B. Pawar in a pending suit. Defendant No. 2-Mahesh is one of the legal representative of deceased Balasaheb and he is also defendant no. 2 in his individual capacity. The trial Court has already framed the issues on 15.02.2013. It was a suit for partition filed by one Lalasaheb Dattoba Pawar present Respondent No. 1 against several defendants. Various properties were described in the schedule ‘A’ to schedule ‘C’ annexed to the plaint. It consists of immovable properties.

3. On one hand, the Plaintiff has contended that suit properties belongs to joint hindu family and hence liable to partition. Apart from other contentions, deceased defendant no. 1-Balasaheb Dattoba Pawar and no. 2-Mahesh Balasaheb Pawar have pleaded that some of the suit properties are self acquired whereas some of the properties were bequeathed by Dattoba Pawar comprising land and structures situated at Tal. Karad, District Satara and also movable properties to defendant no. 1-Balasaheb Pawar. Said Dattoba testator is father of Balasaheb. Copy of the written statement is not filed on record. But we have said so on the basis wordings of issue nos. 4 and 5 framed to that effect by the trial Court on 15th February, 2013.

4. The trial Court has in all framed eight issues. (Page 78) The additional issue no. 5-A (Whether the suit is hit by the principle of res-judicata) was also framed on 28th January, 2015. Defendant No. 2 Mahesh vide his application at Exh.299 has made following grievances:

(a) The grievance of the plaintiff “pertaining to execution and validity of the will dated 21.06.1996 of deceased Dattoba Pawar” is finally concluded and as such Issue No. 2 to that effect needs to be deleted.

(b) The issue of res-judicata No. 5-A should not be made applicable to entire grievances set out in the plaint; but it has to be restricted only to the plea of validity of the will.

(c) The description of the suit properties in the schedule is not proper and new issue ought to have been framed to that effect.

(d) Certain properties claim to have been purchased by the plaintiff out of income of joint hindu family and it is denied and hence issue to that effect ought to have been framed.

5. After hearing both the sides, the trial court was pleased to allow the application in part. The grievance about applicability of principle of res-judicata was accepted and issue no. 5A was order to be re-casted (Para-4 of the order dated 21.09.2018) as follows:

Whether the suit is hit by the principle of res-judicata in view of decision in probate proceedings?

So also grievance relating to improper description of the property was also accepted and issue no. 9 to that effect is order to be framed. Rest of the prayers are rejected by the trial Court. That is why preset petition.

6. After hearing both the sides and going through the record, this Court find that the grievance made for recasting of issues is mainly based on the principles of law and less on question of facts. The trial Court in Para No. 3 of the impugned order (Page 81) has opined that “the issuance of probate does not mean that Will is legal and valid. The question of legality of the Will, will be decided in the suit where same is challenged.” There is challenge to this findings on behalf of the Petitioners.

Previous litigation

7. My attention is invited to the order granting the probate, then the order passed by the Appellate Court and order passed by this Court in Second Appeal. After reading them we can gather following