1 31.SA.289-2022 JUDGMENT.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
SECOND APPEAL NO. 289 OF 2022
Smt. Pramila Shriram Ajmire (Dead)
Through her Legal Heirs
1. Sunil s/o Shriram Ajmire
Age 53 Years, Occ. Business
2. Anil s/o Shriram Ajmire
Age 51 Years, Occ. Business,
Nos. 1 & 2 R/o. Bilanpura, Achalpur,
Tq. Achalpur, District Amravati.
3. Sau. Rekha w/o Bajirao Bijwe
Age 63 Years, Occ. Household Work,
R/o. Macchisath, Near Sakkarsath,
Amravati, Tq. & District Amravati.
4. Sau. Sangeeta w/o Mohan Ajmire
Age 50 Years, Occ. Household Work,
5. Ku. Snehal d/o Mohan Ajmire
Age 23 Years, Occ. Education,
6. Chi. Kaivalya s/o Mohan Ajmire
Age 18 Years, Occ. Education,
Nos. 4 to 6 R/o. Bilanpura, Achalpur,
Tq. Achalpur, District Amravati. APPELLANTS
2 31.SA.289-2022 JUDGMENT.odt
Versus
1. Vasantrao s/o Vitthalrao Shirbhate
Age 85 Years, Occ. Retired,
Presently R/o. At Shirala,
Tq. & District Amravati.
2. Bhagwantrao s/o Vitthalrao Shirbhate
Age 87 Years, Occ. Agriculture,
R/o. Bilanpura, Achalpur,
Tq. & District Amravati. RESPONDENTS
-----------------------------------------------
Mr. P.S. Raut, Advocate for the Appellants.
-----------------------------------------------
CORAM : AVINASH G. GHAROTE, J.
DATED : 26th SEPTEMBER, 2022. ORAL JUDGMENT :-
Heard Mr. Raut, learned counsel for the appellants.
2. The learned Trial Court, by the judgment and decree dated 30.03.2017 (page 64), has decreed the suit for partition and separate possession as filed by the respondents/original plaintiffs. The learned Appellate Court, by the judgment dated 21.01.2022 (page 39), has dismissed the appeal.
3 31.SA.289-2022 JUDGMENT.odt
3. The only ground raised by Mr. Raut, learned counsel for the appellants, is that in view of the earlier suit R.C.S. No. 84/2001 filed by the plaintiffs/respondents and its dismissal and so also the dismissal of the appeal R.C.A. No. 127/2007 challenging the aforesaid dismissal, the provisions of Order II Rule 2 of the Code of Civil Procedure became attracted, and therefore, the present suit for partition R.C.S. No. 243/2012, was not maintainable. I am afraid, I am not able to acceede to this argument for the reason, that R.C.S. No. 84/2001 by the plaintiffs, was a suit claiming ownership over the suit property on the basis that it was their self acquired property, and therefore, the possession of the defendant Pramila was illegal (legal heirs appellants herein), and was dismissed by the Trial Court holding that the suit property was a joint family property of the plaintiffs and defendant/s therein, which finding was affirmed in appeal.
4. Thus, in light of what was claimed in R.C.S. No. 84/2001 and the finding rendered therein, the subsequent suit R.C.S. No. 243/2012, for partition and separate possession would not be hit by the provisions of Order II Rule 2 of the Code 4 31.SA.289-2022 JUDGMENT.odt of Civil Procedure, as the basic pleas raised in both the suits were different. Rather R.C.S. No. 243/2012, was based upon the finding rendered in R.C.S. No. 84/2001, to the effect that the property was not the separate property of the plaintiffs therein but was a joint family property. Even in R.C.S. No. 84/2001, the defence raised by Pramila, that the suit property was given to her by her father and the plaintiffs therein were given separate properties, has been turned down, considering which, in R.C.S. No. 243/2012, all the findings rendered in R.C.S. No. 84/2001, would operate as res judicata, and therefore, in R.C.S. No. 243/2012, the Courts below were correct in not taking into consideration the plea raised by Pramila, that the suit property was given to her by her father, as that issue already stood adjudicated in R.C.S. No. 84/2001 by the Court by holding that Plot No. 79 was a joint property of the plaintiffs and defendant/s, inspite of her defence to that effect being on record. Thus, the finding which was rendered in R.C.S. No. 84/2001 of Plot No. 79 being a joint family property of the plaintiffs and Pramila the defendant, which finding stood confirmed in R.C.A. No. 127/2007, is a finding which is binding upon the parties to R.C.S. No.243/2012, considering 5 31.SA.289-2022 JUDGMENT.odt which, I do not find any substantial question of law involved in the present appeal.
5. The Second Appeal is dismissed. No costs.
6. Pending application/s, if any, shall stand disposed of accordingly.
( AVINASH G. GHAROTE, J.) S.D.Bhimte Signed By:SHRIKANT DAMODHAR BHIMTE Signing Date:28.09.2022 14:18