MIRABAI TRIMBAK PATIL Vs. ANUSAYABAI TRIMBAK PATIL

JUDGEMENT

(1.) This Writ Petition takes exception to the Order dated 15-4-2005 passed by the Additional District Judge at Shahada below Exh. 32 in R.C.A. No. 27 of 2001.

(2.) The background facts of the case are as under : The petitioners herein are the original defendants in R.C.S. No. 14 of 2000 filed by the plaintiff Anusayabai in the Court of the Civil Judge (S.D.) at Shahada for partition and separate possession of the agricultural lands and the house property. The petitioners herein filed Written Statement and resisted the suit claim. According to the petitioners, who are the original defendants, plaintiff Anusayabai has got no concern with the husband of defendant No. 1 namely Trimbak Shamalal Patil. It is specifically averred that, the plaintiff was not the wife of said Trimbak and as such there is no question of consideration of the joint family. The plaintiff Anusayabai herself stepped into witness box and deposed at Exh. 31. In her deposition, she stated that, one Sayankalabai was the first wife of Trimbak Shamalal Patil. Thereafter, said Trimbak married with Anusayabai and thereafter he married with Meerabai. Thus, according to the plaintiff Anusayabai, she is second wife, whereas Meerabai is the third wife of Trimbak Shamalal Patil. She has also stated that she does not know as to who was the owner of the suit lands prior to Trimbak Shamalal Patil.

(3.) On 8-11-2002, the learned Civil Judge (S.D.), Shahada has been pleased to decree the Suit of the plaintiff in respect of 1/4th share of plaintiff in the agricultural lands, agricultural implements, bullocks and the suit house. Feeling aggrieved by the Judgment and Decree in Spl. Civil Suit No. 14 of 2000, the original defendant No. 1 Meerabai has preferred Civil Appeal No. 27 of 2001 in the Court of the Additional District Judge at Shahada, which is pending. In the said Appeal, present petitioners had jointly filed an application Exh. 30 under Order VI, Rule 17 of the Code of Civil Procedure and prayed for inserting paragraph 2-A in the Written Statement. On 7-4-2005, the Additional District Judge, Shahada allowed application Exh. 30 for amendment in the Written Statement. It is the case of the petitioners that, they had filed application Exh. 32 in Civil Appeal No. 27 of 2001 under Order XLI, Rule 25 of the Code of Civil Procedure and prayed for framing the Issues. On 15-4-2005, the Additional District Judge, Shahada has been pleased to reject the application Exh. 32. Hence, this Writ Petition is filed challenging the Order dated 15-4-2005 passed by the Additional District Judge, Shahada below Exh. 32 in R.C.A. No. 27 of 2001. This Court, by Order dated 7-12-2005 granted Rule and Rule on interim relief. The matter is taken up for final hearing. The learned counsel appearing on behalf of petitioner invited my attention to the admissions by the respondent in her Suit for partition bearing R.C.S. No. 14 of 2000, which are as under :