1 931-WP-3748-2018.OJ.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO. 3748 OF 2018

1. Eknath S/o Harishchandra Chormal

Age: 70 years, Occu: Agril.,

2. Devidas S/o Anna Chormal

Age: 67 years, Occu: Agril.,

3. Bhikaji S/o Narayan Sangale

Age: 69 years, Occu: Agril.,

All R/o Mahankal-Wadgaon,

Tq. Shrirampur, District Ahmednagar

… Petitioners

Versus

1. Dilip S/o Bhagwat Joshi

Age: 58 years, Occu: Agril.,

R/o Revenue Colony,

Kopargaon, Tq. Kopargaon,

District Ahmednagar

2. Sudhakar S/o Bhagwat Joshi

Age: 54 years, Occu: Agril.,

R/o Godavri Housing Society,

6, Wiskim Upendra Nagar,

CIDCO, Nashik

3. Sunita Sudhakar Gaydhane

Age: 60 years, Occu: Household,

R/o “Samartha” Bungalow

Behind Sainath Nagar Bus-stop,

Patharde Road, Nashik

District Nashik

4. Shantabai Shakuntala Bhagwat Joshi

Since deceased through legal heirs

Respondent Nos.1 to 3

5. Prakash S/o Changdeo Joshi

2 931-WP-3748-2018.OJ.odt

Age: 58 years, Occu: Agril.,

R/o Taklibhan, Tq. Shrirampur,

District Ahmednagar

6. Ashok S/o Changdeo Joshi

Since deceased through L. Rs.

Respondent Nos.5 to 7

7. Kamal Dattatraya Kulkarni

Age: 54 years, Occu: Agril.,

R/o Takilbhan, Tq. Shrirampur,

District Ahmednagar

8. Sushil W/o Changdeo Joshi

Since deceased through L.Rs.

Present respondent Nos.5 to 7

Are the legal heirs

9. Laxman S/o Gopal Chormal

Since deceased through L. Rs.

9-A Muktabai S/o Laxman Chormal

Since deceased

9-B Nivrutti S/o Laxman Chormal

Age: 65 years, Occu: Agril.,

9-C Balu S/o Laxman Chormal

Age: 60 years, Occu: Agril.,

9-D Tukaram S/o Laxman Chormal

Age: 58 years, Occu: Agril.,

Respondent Nos.9-B to 9-D

R/o Mahankal-Wadgaon,

Tq. Shrirampur, Dist. Ahmednagar

… Respondents

…

Mr. R. R. Karpe, Advocate for the Petitioners

Mr. S. P. Chapalgaonkar, Advocate for Respondent Nos.1 to 3

...

3 931-WP-3748-2018.OJ.odt

CORAM : NITIN B. SURYAWANSHI, J.

DATE : 15^th March, 2022

ORAL JUDGMENT :

.

RULE. Rule made returnable forthwith. Heard finally with the

consent of the learned Advocates for the respective parties.

2.

This petition challenges the order dated 5^th March, 2018 passed

below Exhibit-225 in Regular Darkhast No.237/1985, by the learned

2^nd Joint Civil Judge, Junior Division, Shrirampur, thereby rejecting

the application for amendment in the say of third party.

3.

Respondent Nos.1 to 4 filed Regular Civil Suit No.112/1974

seeking partition and separate possession of suit property bearing Gat

Nos.194 and 204, situated at Village Mahankal-Wadgaon. The suit

was decreed in the year 1978, appeal challenging, the said judgment

and decree was dismissed. Respondent Nos.1 to 4 filed Regular

Darkhast No.25/1982 for execution of the said judgment and decree.

4.

The respondent Nos.1 to 4 filed application (Exhibit-186)

seeking appointment of Court Commissioner to effect partition of

house properties, situated on Gat No.194. It is stated in the

application that Devidas Annasaheb Chormal, Bhikaji Narayan

4 931-WP-3748-2018.OJ.odt

Sangale, Eknath Harishchandra Chormal and Balu Laxman Chormal

have constructed their houses in Gat No.194 during the pendency of

the suit. Therefore, respondent nos.1 to 4/decree holders are entitled

to the possession of the land on which these persons have constructed

their houses. For giving possession of the same, Court Commissioner

be appointed. The Executing Court allowed the application (Exhibit-

186) by order dated 09/10/2017 and appointed Court Commissioner

to effect partition of house properties situated on Gat No.194.

5.

Pursuant to the order passed by the Executing Court below

Exhibit-186, notice was issued on 20/11/2017, thereby calling upon

the petitioners to remain present for handing over the possession. The

petitioners t