Advocates:
['GANGAKHEDKAR SHAILENDRA S', 'R NO SERVED', '', 'Gade Ganesh A', 'R NO & SERVED', 'PANPATTE V S']

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.12821 OF 2018

WITH CIVIL APPLICATION NO.1202 OF 2021

1)

Kachraji s/o Santuka Kavale,

Age: 65 years, Occu: Agriculture,

R/o: Zalegaon, Taluka Umri,

District Nanded

2)

Rukhmaji s/o Kachraji Kavale,

Age: 30 years, Occu: Agriculture,

R/o: Zalegaon, Taluka Umri,

District Nanded

3)

Santuka @ Santosh s/o Kachraji Kavale,

Age: 28 years, Occu: Agriculture,

R/o: Zalegaon, Taluka Umri,

District Nanded

… Petitioners

Versus

1)

Prayagbai Jayram Kavale,

Age: 70 years, Occu: Household,

R/o: Daregaon, Taluka Mudkhed

District Nanded

2)

Bhagirathbai Maroti Gadhe,

Age: 50 years, Occu: Agriculture,

R/o: Daregaon, Taluka Mudkhed

District Nanded

3)

Raubai Baburao Kumbhre,

Age: Major, Occu: Agriculture,

R/o: Hunda (G.P.) Taluka Umri,

District Nanded

… Respondents

…

Advocate for Petitioners : Mr. S. S. Gangakhedkar

Advocate for Respondent No.1 : Mr. V. S. Panpatte

Advocate for Respondent Nos. 2 and 3 : Mr. G. A. Gadhe

…

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CORAM : NITIN B. SURYAWANSHI, J.

RESERVED ON : 25^th MARCH, 2022

PRONOUNCED ON : 08^th APRIL, 2022

JUDGMENT :

1.

Rule. Rule made returnable forthwith. Heard finally by the

consent of the parties.

2.

This petition is directed against the order dated

11-10-2018, passed by the learned Civil Judge Junior Division, Umri,

below Exhibit-68 in R.C.S. No.35/2015, thereby allowing the application

filed by respondent and directing the petitioners to undergo DNA test.

3.

The petitioners are the original defendant Nos. 2 to 4 in the

suit filed by respondent Nos. 1 to 3 i.e. original plaintiffs. The plaintiffs

filed the said suit for partition and separate possession of the suit

property and for cancellation of ownership of defendant Nos. 2 and 3 on

the suit property. In the plaint it is contended by the plaintiffs that

original defendant No.1 is husband of plaintiff No.1 (respondent No.1

herein) and father of plaintiff Nos. 2 and 3 (respondent Nos. 2 and 3

herein). Original defendant No.2 (petitioner No.1 herein) is real brother

of defendant No.1 and defendant Nos. 3 and 4 (petitioner Nos. 2 and 3

herein) are sons of defendant No.2.

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4.

The defendants resisted the suit by filing common written

statement where the relation of the plaintiffs with defendant No.1 was

admitted. However, it is averred that defendant Nos. 3 and 4 are sons of

defendant No.1 and in the revenue record produced by the plaintiffs in

the Court, they are shown to be sons of defendant No.1. So it was

specifically denied that defendant Nos. 3 and 4 are sons of defendant

No.2 and it is claimed that they are the sons of defendant No.1.

5.

On the basis of the pleadings issues were framed. Issue

No.2 is that, “Do the plaintiffs prove that defendant Nos. 3 and 4 are

children of defendant No.2 ?”

6.

Plaintiff No.1 led her evidence. Thereafter, the application

Exhibit-68 is filed by plaintiff No.1 contending that as per issue No.2

burden is casted upon the plaintiffs to prove that defendant Nos. 3 and 4

are sons of defendant No.2. For establishing the paternity of defendant

Nos. 3 and 4 it is necessary to conduct their DNA test which will bring

true and correct position before the Court. Hence, the defendant No.2,

his wife Sheshabai and defendant Nos. 3 and 4 be directed to undergo

DNA test.

.

This application was strongly opposed by the

petitioners/defendants contending that to prove that defendant Nos. 3

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and 4 are sons of defendant No.1 Aadhar Card, Voter ID card, School

T.C. and Ration card are placed on record. Earlier plaintiff No.1 had filed

R.C.S. No.103/1997 against defendant No.1. In that suit defendant No.1

had specifically contended that defendant Nos. 3 and 4 are sons of

plaintiff No.1 and him. Evidence to that effect was also given on oath by

defendant No.1. It was, therefore, stated that the said application is not

tenable and be di