JYOTIBEN JAVAHARBHAI DESAI Vs. VILASBHAI BABUBHAI DESAI

JUDGEMENT

(1.) The present petition under Articles 226 and 227 of the Constitution of India is filed for the purpose of following reliefs:

(2.) The petitioner and the respondent No.4 herein are the original plaintiffs and the respondent Nos.1, 2 and 3 herein are the original defendants. The petitioners and the respondent Nos.1, 2 and 4 are the real sisters and brothers whereas the petitioners are also sisters and also daughters of Babubhai Desai and the respondent Nos.1 and 2 are the sons of Babubhai Desai. The petitioner herein, being the daughter of Babubhai Desai, had filed Special Civil Suit No.53 of 2013 which was renumbered as Special Civil Suit No.269 of 2015 for declaration and for seeking partition, as they have got their legitimate right in the ancestral property owned by their father. During the course of proceedings particularly during cross-examination, learned advocate of the defendants had asked a question to the plaintiff as to whether all the lands owned by the father are subject matter of suit or not, and since the plaintiffs, being daughters were residing with their respective in-laws were not having any knowledge at the time of submitting plaint, and simultaneously had requested the defendants to submit details of all lands owned by their father Babubhai Desai. In that process, the petitioner could inquire that the land, bearing Revenue Survey Nos.129/4, 114/2 and 126/3 of Village Kunta, Tal.-Vapi, District - Valsad were also belonging to his father - Babubhai and the said lands are also required to be included in the suit proceedings and for that purpose, an application under Order VI Rule 17 of the Code of Civil Procedure came to be filed below Exh.248. The said application came up for consideration before the learned court below, who by way of an order dated 04.12.2018 passed an order, which according to the petitioner is based on misconstruction of provisions and is also traveling beyond the scope and jurisdiction, and as such, the said order dated 04.12.2018 is challenged in the present proceedings by invoking extraordinary jurisdiction of this Court under Articles 226 and 227 of the Consideration of India.

(3.) The contesting respondents in the proceedings have submitted a caveat application, as a result of this, the main petition itself is taken up for hearing and while examining as to whether petition is entertainable or not, hearing took place.