SHIVAJI VISHNU KSHIRSAGAR Vs. SAYAJI VITTHAL KSHIRSAGAR

JUDGEMENT

(1.) Rule, by consent of the parties made returnable forthwith and heard.

(2.) The Writ jurisdiction under Article 226 of the Constitution of India is invoked against the order dated 21 9 2010 passed by the Learned District Judge Satara, by which order, the application filed by the Respondents herein under Order 26 Rule 10A read with Section 151 of the Civil Procedure Code, was allowed.

(3.) Shorn of unnecessary details, a few facts which are necessary to be cited for the adjudication of the above Petition can be stated thus: The Respondent No.1 is the original Plaintiff and the Petitioners herein are the original Defendants. The Respondent No.1 filed Regular Civil Suit No.134 of 1990 for partition and possession. The subject matter of the said suit are 10 agricultural lands and two houses at Village Dhamner, Taluka Koregaon, District Satara. It is the case of the Respondent No.1 that the said suit properties are ancestral properties of the joint family and the same was with the common ancestor one Vishnu. The Petitioners herein i.e. the Defendants to the said suit filed their written statement and it was their contention that the Respondent No.1 has no claim to the properties in question as the Respondent No.1 is enjoying the properties of his adopted family with his father and is not concerned with the family of the Petitioners or suit properties. It was the case of the Petitioners that except the land Gat No.573 rest of the lands are self acquired properties of Vishnu who was working at Mumbai since the age of 20. It was further their case that the suit properties have been bequeathed to them by the said Vishnu by a Will Deed and that they are in possession of the said properties pursuant to the Will by virtue of which they have become owners. It appears that the Plaintiffs rested on the issue as regards genuineness of the Will executed by Vishnu in favour of the Defendants i.e. the Petitioners herein and in furtherance thereof, the Respondent No.1 filed an application for appointment of a Court Commissioner in the nature of hand writing expert to opine about the signatures of the said Vishnu on the Will Deed as well as some other documents. The said application filed by the Respondent No.1 came to be rejected by the Trial Court by order dated 1 3 2000. It is required to be noted that the said order was not challenged further by the Respondent No.1 at the relevant time. The said Regular Civil Suit No.134 of 1990 came to be dismissed by the Trial Court i.e. the Learned Civil Judge Junior Division, Koregaon by Judgment and Order dated 4 4 2000. The fact that the application of the Respondent No.1 Exhibit 124 calling for report of the hand writing expert was referred to by the Trial Court in its Judgment.