NIKITA MANOHAR MORE Vs. NITESH PUNDLIK PATIL

JUDGEMENT

(1.) Rule. Rule made returnable forthwith. Heard finally with the consent of learned counsel for the Petitioners and the Respondent.

(2.) By this Writ Petition filed under Article 227 of the Constitution of India, the Petitioners are challenging the order dated 9th September, 2016 passed by the Court of Jt. Civil Judge Junior Division, Palghar, thereby rejecting the Petitioners' application at Exhibit7 filed under Order2 Rule2(3) of Civil Procedure Code. The Petitioners were constrained to file the said application as the Respondent was intending to create third party interests in the joint family properties of the Petitioners. Hence, the Petitioners wanted to seek partition and separate possession of their share in the suit properties along with relief of injunction restraining the Respondent from alienating the suit property. However, in order to file a suit for partition and separate possession of their share in the suit property, the Petitioners wanted to collect various documents but as the Petitioners had apprehension that meanwhile the Respondent may create third party interests in the suit property, by way of urgent relief, the Petitioners had filed only the suit simpliciter for injunction and in order to reserve their right to file suit for partition, they filed an application at Exhibit7 under Order2 Rule2(3) C.P.C., seeking leave of the trial Court to omit that relief in this suit.

(3.) The trial Court, however, rejected the said application on the count that the Petitioners are not the coparceners and therefore, they are not eligible for filing the suit for partition in the capacity of coparceners. Therefore, the Petitioners are not entitled to get the leave as contemplated under Order2 Rule2(3) of C.P.C..