Bombay High Court
Shrikant Govindrao Sangvikar And ... vs Ashok Rangnath Magar And Others on 7 April, 2016
Bench: T.V. Nalawade
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 251 OF 2011
1. Shrikant Govind Sangvikar ... Appellant
Age 67 years, Occu: Bhikshuki (org. plaintiff)
R/o C/o Smt Usha Balkrishna
Pathak, 1026, Uttar Kasba,
Solapur
VERSUS
1. Rukhminibai w/o Manik
Sangvikar, (Died) through her
Legal heirs.
1-A) Sanjiv Vinayak Chiwate
Age 42 years, Occu: Business
R/o Soham Building, Krishna
Pool Naka, Karad, Dist.
Satara.
1-B) Sau Sanjana Govindrao
Kulkarni
Age 44 years, Occu: Household
R/o Salegaon Panji, Goa State
(deleted as per Exh.25)
2) Ashok Rangnath Magar ... Respondents
Age 52 years, Occu: Business (org.defendants)
R/o Mankawati Galli, Tuljapur
Tq.Tuljapur, Dist. Osmanabad.
Shri S. P. Brahme, Advocate for the appellants
Shri S. S. Choudhari, Advocate for respondent No.2.
WITH
SECOND APPEAL NO. 285 OF 2013
Shrikant Govindrao Sangvikar ... Appellant
Age 65 years, Occu: (orig.
Bhikshuki, R/o 1026, North plaintiff )
Ksaba, Solapur
VERSUS
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Ashok Rangnath Magar ... Respondent
Age: Major, Occu: Trader (Orig.
R/o Makanwanti Lane, Tuljapur defendant)
Tq. Tuljapur, Dist. Osmanabad
Mr. S. P. Brahme, Advocate for the appellant
Mr. S. S. Choudhari, Advocate for the respondent.
WITH
SECOND APPEAL NO. 790 OF 2013
1. Shrikant Govindrao Sangvikar
Age 64 years, Occu: Agri.
R/o 1026, North Kasba,
Solapur, Tq. & Dist. Solapur.
2. Sundrabai Shrikant Sangvikar
Age 61 years, Occu: Household
R/o As above.
VERSUS
1. Ashok Rangnath Magar
Age :50 years, Occu: Business
R/o Tuljapur, Dist. Osmanabad
2. Tanubai Manik Pawar
Age 70 years, Occu: Household
R/o Malumbra Tq. Tuljapur
Dist. Osmanabad.
3. Bharat Manik Magar
Age 48 years, Occu: Agri.
R/o As above.
4. Sudhakar Manik Pawar,
Age 42 years, Occu: Agri.
R/o As above.
5. Netaji Manik Pawar,
Age 46 years, Occu: Agri.
R/o As above.
6. Vyankat Manik Pawar
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Age 44 years, Occu: Agri.
R/o As above.
7. Suman Jarasangh Wadne,
Age 44 years, Occu: Household
R/o At Post: Tuljapur
Tq. Tuljapur, Dist. Osmanabad
8. Sau. Mangal Mohan Navgire
Age 40 years, Occu: Household
R/o At post Tuljapur
Tq. Tuljapur, Dist. Osmanabad
9. Te Assistant Engineer,
Circle-1, Irrigation Project,
Sub Division, Tuljapur
Tq.Tuljapur, Dist. Osmanabad
10. The Executive Engineer, ... Respondents
Irrigation project, (orig.
Omerga, Tq. Omerga Defendants)
Dist. Osmanabad.
Mr. S. P. Brahme, Advocate for the appellants.
Mr. s. S. Choudhari, Advocate for respondent No.1
Mr. S. A. Wakure, Advocate for respondents 2 to 8.
WITH
WRIT PETITION NO. 4016 OF 2015
1. Bharat s/o Manik Pawar
Age 52 years, Occu: Agri.
R/o Malumbra Tq. Tuljapur
District: Osmanabad
2. Netaji s/o Manik Pawar
Age 42 years, Occu: Agri.
R/o Malumbra Tq. Tuljapur
District: Osmanabad
3. Vyankat s/o Manik Pawar ... Petitioners
Age 37 years, Occu: Agri. (Original
R/o Malumbra Tq. Tuljapur respondents
District: Osmanabad in MCA)
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VERSUS
1. Shriknt s/o Govind Sangvikar
Age 72 years, Occu: Bhikshuki
R/o 1026, Uttar Ksaba,
Solapur, Tq. & Dist.Solapur
2. Sou. Sundarbai w/o Shrikant
Sangvikar
Age 72 years, Occu: Household
R/o 1026, Uttar Ksaba,
Solapur, Tq. & Dist.Solapur
3. Ramchandra @ Bandu s/o
Govindrao Sangvikar
Age 62 years, Occu: Bhikshuki
R/o 213, Jodbhavi Peth,
Solapur, Tq.& Dist. Solapur
4. Usha @ Prabhavati w/o
Balkrishna Pathak
Age 68 yeas, Occu: Household
R/o 1026, Uttar Ksaba,
Solapur, Tq. & Dist.Solapur
5. Sou. Anuradha @ Vatsala w/o
Balkrishna Pathak
Age 60 years, Occu: Household
R/o Atpadi, Tq. Atpadi,
District:Sangli
6. Sou. Surekha w/o Nandkishor
Pathak, Age 68 years,
Occu: Household,
R/o 213, Jodbhavi Peth,
Solapur, Tq.& Dist. Solapur
7. Sou. Surekha @ Sharda w/o
Prasad Pachlag,
Age 66 years, Occu: Household
R/o Gokul Nagar Road, Hubali
(Karntaka State).
8. Sou. Madhvi Narayan Godase
(Dead)Through legal
representatives
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8-A Dhananjay s/o Narayan Godase
Age 40 years, Occu: Service,
R/o Bhigwan Road, Baramati.
Dist. Pune.
8-B Sou. Gita w/o Manohar Ghodake ... Respondents
Age 38 years, Occu: Household (Original
R/o Bhekaraie Nagar, Hadapsar Appellants)
Pune, Tq. & Dist. Pune
8-C) Sou. Priti w/o Prathmesh (Petition is
dismissed as
Avsekar against
Age 36 years, Occu: Household Respondents 3, 6
R/o Bhekaraie Nagar, Hadapsar and 8A as per
Pune, Tq. & Dist. Pune. order
dt.16.10.2015.
Mr. Sanjay A. Wakure, Advocate for the petitioners
Respondent Nos. 1 and 3, 6, 8A-party in person
CORAM : T. V. NALAWADE, J
DATE : 7th April, 2016.
J U D G M E N T:
1. Second Appeal No. 251/2011 is already admitted.
The decision of this appeal will automatically decide
the other proceedings as the other proceedings have
arisen out of the dispute mentioned in Second Appeal
No.251/2011. In view of this circumstance, the other
two second appeals viz. Second Appeal No. 285/2013 &
790/2013 are admitted. Notice after admission made
returnable forth with and by consent, these appeals are
also heard alongwith Second Appeal No. 251/2011. For
the same reason, Rule in Writ Petition No.
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4016/2015. Rule made returnable forth with and by
consent, it is also taken up for final disposal.
2. Second Appeal No. 251 of 2011 is filed against
the judgment and decree of Special Civil Suit No. 65
of 1996 which was pending in the court of Civil Judge,
Senior Division, Osmanabad and also against judgment
and decree of Regular Civil Appeal No. 242/2009 which
was pending before the District Judge-4, Osmanabad.
This suit was filed by the present appellant Shrikant
for the relief of declaration that sale deed executed
by Defendant No.1 Rukhminibai Sangvikar (Joshi) in
favour of defendant No.2 in respect of the suit
property is null and void. The relief of possession was
also claimed of the said land by the plaintiff but both
the reliefs are refused and the suit is dismissed.
3. Second Appeal No. 790/2013 is filed against the
judgment and decree of Regular Civil Suit No. 232 of
2007 which was pending in the Court Civil Judge, Senior
Division, Tuljapur District Osmanabad by the plaintiff
of Special Civil Suit No. 65 of 1996. It is also
against the judgment decree of Regular Civil Appeal
No. 136/2009 which was pending in the District Court,
Osmanabad. The appeal was filed by Ashok Magar, the
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purchaser who is defendant No.2 in Special Civil Suit
No. 65 of 1996. Regular Civil Suit No. 232 of 2007 was
filed for direction against the Land Acquisition
Officer and the Government to deposit the compensation
amount in respect of acquisition of some portion of the
suit land viz. Gat No. 623 in the Court. In this suit,
it was contended that as Special Civil Suit No. 65 of
1996 was filed against Ashok Magar and it was not
finally decided, the compensation amount received in
respect of the suit land cannot be paid to Ashok Magar
till the decision of Special Civil Suit No. 65 of
1996. The Trial Court has held that the plaintiff is
not entitled to recover the amount already paid to
Ashok Magar but direction was given by the Courts below
to deposit the remaining amount of compensation viz.
Rs.19,585/- in the Court for protecting interest of
the parties.
4. Second Appeal No. 285/2013 is also filed by the
appellant from Appeal No. 251/2011 and it is filed to
challenge judgment and decree of Regular Civil Suit
No. 121 of 2007 which was pending in the Court of
Civil Judge, Junior Division, Osmanabad. It is also
against the decision of Regular Civil Appeal No. 5 of
2009 decided by the District Court, Osmanabad. This
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suit was filed by Shrikant, the plaintiff of in Special
Civil Suit No. 65 of 1996 for relief of injunction to
protect the possession till the decision of Special
Civil Suit No. 65 of 1996. This suit is dismissed by
the Courts below.
5. Writ Petition No. 4016/2015 is filed by one
Bharat Manik Pawar who is purchaser from Ashok Magar of
the suit property mentioned in Special Civil Suit No.
65 of 1996. This proceeding is filed to challenge the
order dated 03.01.2015 made in Misc. Civil Appeal No.
150/2013 by the District Court, Osmanabad. This appeal
was filed against the interim order made in Regular
civil Suit No. 132/2007 against the decision of which
Second Appeal No.790/2013 is filed. In that suit,
Shrikant, plaintiff was allowed to withdraw the amount
of compensation deposited in the court. This order was
made in view of the decision given by this Court in
Second Appeal No. 251 of 2011. These matters were
decided on 13.02.2014 by this Court, other Hon'ble
Judge and the decision was challenged by filing
Special Leave Petition in the Supreme Court. The
Hon'ble Apex Court has set aside the decision of this
Court dated 13.02.2014 and the matters are remanded
back to this Court. In view of the decision dated
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13.02.2014, the trial court allowed Shrikant, plaintiff
to withdraw the compensation amount.
6. Agricultural Land bearing Gat No. 623, the suit
property, admeasures 10 Hectare 50 R and it is
situated at village Sangvi, Taluka Tuljapur, District
Osmanabad. Defendant No.1 Rukhminibai is the widow of
paternal uncle of plaintiff Shrikant. Rukhminibai
died during the pendnecy of the suit. She had one
daughter by name Sushila and she was also dead and so
two issues of Sushila like Sanjay and Sanjana were
brought on record in the suit as per order made on
Ex.1 and Exh.68. They did not file written statement.
Ex-parte order was already made against Rukhminibai.
In Regular Civil Appeal No. 242/2009, initially both
the issues of Sushila were made respondents but
subsequently, the present appellant withdrew the
proceedings filed as against Sanjana, a daughter of
Sushila. This circumstance is a relevant circumstance
and needs to be kept in mind in view of the objection
taken to the tenability of the proceedings.
7. It is the case of the plaintiff of Special Civil
Suit No. 65 of 1996 that the suit property is ancestral
and joint Hindu family property of plaintiff and
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defendant No.1 Rukhminibai. It is contended that in
the past, Regular Civil Suit No. 127/1970 was filed by
Rukhminibai against present plaintiff and in that suit,
compromise had taken place on 19.12.1973. It is
contended that in the compromise, the suit land was
allotted to the share of plaintiff Shrikant. It is
contended that in view of the compromise, mutation was
also made in favour of Shrikant and the other
relatives of his branch and the name of Rukhminibai
was deleted from the revenue record.
8. It is the case of plaintiff Shrikant that behind
his back, defendant No.1 Rukhminibai got entered her
name again in the revenue record as the owner. It is
contended that Rukhminibai had become physically and
mentally weak and sick. It is his case that she was
absent minded and she had lost control over the mental
faculty, she had virtually became insane. It is
contended that in view of this condition of
Rukhminibai, notice was published by him in newspaper
to see that nobody makes any transaction with
Rukhminibai. It is contended that inspite of this
circumstance, defendant No.2 Ashok Magar purchased suit
property from Rukhminibai under sale deed dated
26.07.1994 for consideration of Rs.1.5 lakh. It is
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contended that plaintiff and Rukhminibai both were
living in Solapur at the relevant time. It is contended
that Rukhminibai virtually deceived the plaintiff and
so criminal case was also required to be filed against
her and defendant No.2. After making this contention,
aforesaid reliefs were claimed in Spl. Civil Suit No.
65 of 1996.
9. Defendant No.2 purchaser filed written statement
and contested the matter. In the written statement, he
admitted that Gat No. 623 was ancestral and joint
family property of plaintiff and Rukhminibai. He
contended that Rukhminibai had equal share in the
property and her share was 3 H 74 R. He contended
that this share was purchased from Rukhminibai for
lawful consideration. He denied that Rukhminibai was
not mentally and physically fit to execute the sale
deed. He contended that the aforesaid compromise decree
was probably obtained by exercising undue influence and
fraud on Rukhminibai. He contended that Sushilabai
was daughter of Rukhminibai and she had also share in
the suit property but she was not shown as party to
compromise. He contended that the suit is bad for
non-joinder of necessary party as the other persons
who can challenge the transaction are not made party to
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the suit. He also contended that after death of
husband of Rukhminibai, the plaintiff probably created
false record and he deceived Rukhminibai to grab her
property. He contended that he is bona fide purchaser
for value and without notice. He contended that he got
the possession under the sale deed and so no relief
can be granted to the plaintiff.
10. Issues were framed on the basis of aforesaid
pleadings in Special Civil Suit No. 65 of 1996.
11. In view of the nature of dispute, it is
desirable that the record is mentioned first. The 7/12
extract at Exh.111, which is from the year 1993-94,
onwards shows that initially names of three persons
were shown as owners and they had equal shares in 10
Hectares 50 R portion. One owner was Smt. Rukhminibai,
other owner was Vyankatesh Joshi, brother-in-law of
Rukhminibai and third owner was Manik Pawar.
12. In the year 1996, when the suit was filed, the
plaintiff had not given boundaries of the disputed
portion and he had claimed the relief in respect of
entire area of Gat No. 623. On 20.09.2004, plaintiff
Shrikant made amendment in the plaint and he described
the suit portion by mentioning some portions of Gat
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No. 623 on eastern and western sides. However, he did
not mention specific area in respect of which the
relief of possession was claimed. Thus, right from
beginning the suit was defective due to defect in the
discretion of property. From this circumstance, it can
also be be said that the plaintiff was not sure
about the area owned by him or by Rukhminibai.
13. At Exh. 114, there is certified copy of Mutation
No.166 dated 19.01.1966. It is in respect of survey
No. 192. It is not disputed that survey No. 192 was
changed and the present No. of the said land is Gat
No. 623. This document shows that initially the entire
property was standing in the name of Manik Dattraray
Joshi, Husband of Rukhminibai. After the death of
Manik Joshi, application was made by Vyankatesh,
brother of Manik Joshi and he requested to enter the
names of three persons like Rukhminibai, Vyankatesh and
Govind. Govind was also brother of Manik Joshi and
present plaintiff is a son of Govind. It appears that
name of the widow of Govind was entered as owner of
equal share in place of Govind in Revenue Record.
14. No record of period prior to 1966 is produced to
show that land had come to Manik Joshi from his father
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and he was holding the property as Karta of Joint Hindu
family, consisting of Manik Joshi and his two brothers
viz. Govind and Vyankatesh. It needs to be kept in mind
that Rukhminibai had no son and she had one daughter
and she was living at the mercy of the two brothers of
Manik Joshi. The steps were taken for mutation by two
brothers of Manik Joshi.
15. There is certified copy of Mutation No. 1430 dated
16.10.1989. This document shows that Manik Pawar had
applied for this mutation. It is already mentioned
that Exh.111 shows the name of Manik Pawar as owner of
1/3 portion. He had applied for entering his name on
the basis of sale deed dated 29.06.1982 executed in his
favour by widow of Govind and also on the basis of
decision of Regular Civil Suit No. 74/1976. The record
shows that the it was the case of Manik Pawar that he
was in possession on Batai basis and so there was
dispute. Subsequently, he purchased 1/3 portion from
this Gat No. from widow of Govind. So name of Manik
Pawar was entered for 1/3rd portion by this mutation.
After making of this mutation, the name of mother of
plaintiff Shrikant was deleted.
16. There is another 7/12 extract for the year 1976-
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77 and it also shows that the names of Manik Pawar,
Rukhminibai and Vyankatesh Joshi were entered for that
year also for 1/3rd share each. The other revenue
record shows that after death of Manik Pawar, names of
his successors like Bharat Manik Pawar etc. were
entered in the revenue record. The revenue record
shows that in the possession column of 7/12 extract,
names of Manik Pawar and Ashok Magar, defendant No. 2
of Special Civil Suit No. 65 of 1996 were shown. In the
suit also, Shrikant claimed possession of entire area
and so this circumstance also needs to be kept in mind.
17. The suit claim was based mainly on so called
compromise decree of Regular Civil Suit No. 127/1970.
The trial court did not consider the circumstance of
compromise decree as certified copy of compromise
decree and other relevant document was not produced. It
appears that certified copy of compromise decree was
produced in the appeal. This court has no hesitation
to hold that such certified copy cannot change the fate
of the matter in view of the other record available.
In the cross examination, plaintiff Shrikant has
admitted that 1/3rd share of the branch of Govind was
sold by his mother to Manik Pawar. Copy of mutation
made on the basis of sale deed is at Exh.116 and it is
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already mentioned that by the mutation 1/3rd portion
was shown to be sold by mother of Shrikant to Manik
Pawar. In the sale deed, description of the property
sold to Manik Pawar was given and on the western side
of this portion, the portions belonging to Vyankatesh
Joshi and Rukhminibai were shown. This circumstance
shows that in the year 1972, as per the branch of
Govind each sharer was in separate possession of
respective 1/3 share and partition had already taken
place amongst the three branches. There is such
admission of the branch of Govind of partition in the
sale deed and it cannot be ignored. The entire record
of the suit filed in the year 1970 is not produced and
further the entire revenue record and city survey
record of other properties is not produced to show that
all these properties had come to husband of Rukhminibai
from his father.
18. The compromise decree was prepared on
19.12.1973 and application for mutation on the basis
decree was made by mother of Shrikant on 24.04.1976.
The application was made to make entry of the names of
all the successors of Govind in respect of entire area
of Gat No. 623. In the cross examination, Shrikant
has admitted that no notice of this mutation proceeding
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was given to Rukhminibai. He admits that mutation was
made on the same day though it was sanctioned on
19.10.1976. This document is at Exh.113. At Exh. 115,
there is certified copy of another mutation made on the
basis of application given by Rukhminibai. This
mutation shows that she had applied to the revenue
authority to make correction in the revenue record and
it was her case that mutation shown in Exh. 113 was
wrongly made and it was made behind her back. The
mutation at Exh. 115 shows that name of Rukhminibai
was entered again as owner of 1/3rd portion and this
mutation was sanctioned on 15.11.1991. No record at all
is produced by Shrikant, plaintiff to show that
mutation dated 15.11.1991 made in favour of Rukhminibai
was challenged by him or any other person and the
name of Rukhminibai was again deleted. It needs to be
kept in mind that after this mutation, in the year
1994, Rukhminibai sold her share as per the revenue
record to defendant No.2 Ashok Magar.
19. The substantive evidence of plaintiff Shrikant
does not show that the compromise mentioned in
compromise decree of Regular Civil Suit No. 127 of
1970 was really given effect and accordingly names of
all the parties were entered in the record of all the
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properties. The document mentions that many steps were
to be taken even by Vyankatesh and some property was to
be handed over to Rukhminibai. No record is produced to
show that such property was really given to Rukhminibai
as per the compromise. Further, the compromise
document shows that the daughter of Rukhminibai was not
party to the compromise. Even if the case of Shrikant
that Rukhminibai's branch had only 1/3 rd share in the
property is accepted as it is, it can be said that
daughter of Rukhminibai had 1/6th share and Rukhminibai
had only 1/6th share in the area of land Gat No. 623.
Thus, virtually no evidence is given except the
aforesaid mutation made in respect of Gat No. 623 by
Shrikant to show that steps were taken on the basis of
this compromise and other property was given to
Rukhminibai. In any case, everything about mutation
made against Rukhminibai and compromise decree is
fishy. It is already observed that in the sale deed
executed by mother of Shrikant, it was shown that the
parties were enjoying there shares separately and so
there was no need of filing suit for partition for
Rukhminibai.
20. The record and facts and circumstances of the
present matter show that more things could have been
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brought to the notice of the Court if Rukhminibai was
represented even in the present matter. Even the
address of Rukhminibai was not complete in the Special
Civil Suit No. 65/1996 but she is shown to be served.
If Rukhminibai was properly defended, the record of
all the properties could have been produced and more
light could have been thrown on the conduct of
brothers of Manik Joshi. Rukhminibai was widow of Manik
Joshi and she was having no son and all the mutations
were made by her brothers-in-law and record shows that
they virtually tried to get everything by taking such
steps. The steps taken by Rukhminibai for correction
of revenue record and absence of challenge to the
mutation made again in favour of Rukhminibai is
sufficient to draw inference that the compromise decree
shown to be made in the year 1973 was never acted upon.
21. The execution of sale deed by Rukhminibai in
favour of defendant No.2 is admitted by Shrikant in
the present matter. There was name of Rukhminibai as
owner of 1/3rd portion in revenue record and in the
past also her husband was shown as owner of the land.
22. The aforesaid record and pleadings show that
defendant No. 2 could get possession from Rukhminibai.
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All these circumstances are relevant. The courts below
have dismissed the suit by holding that the suit is bad
for non-joinder of necessary parties. It is already
observed that the suit was filed for recovery of entire
area. Further the suit was filed for declaration in
respect of sale deed. This sale deed ought to have been
challenged not only by Shrikant but by all the
successors of Govind Joshi, Vyankatesh Joshi and also
by the daughter of Rukhminibai. They were necessary
parties to the suit and so, the suit was bad for non-
joinder of necessary parties. In view of this
circumstances, while admitting the appeal, this court
had framed the following substantial question of law:
Whether the appellant can be non-suited for non-
joinder of necessary party when he brings the
suit in capacity of co-owner though he fails to
prove his exclusive ownership ?
23. The learned counsel for the appellant argued on
one more point and he submitted that substantial
question of law needs to be formulated due to the
findings given by the courts below that defendant No.2
was not bona-fide purchaser. He submitted that in view
of this finding, the courts below ought to have
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decreed the suit and so substantial question of law
needs to be formulated on this point also.
24. The learned counsel for appellant placed reliance
on seven reported cases as under:
(1) AIR (Ori.)1958 (O) 101, Mohammad Asgar Vs.
Narayan Mohapatra.
(2) 1976 AIR (SC)2335, Ram Pasricha Vs. Jagannath.
(3) 1991 (4) SCC 17, A. Vishwanatha Pillai Vs.
Special Tahsildar.
(4) 1993 (3) SCC 49, Laxmishankar Bhatt Vs. Yashram
Vasta.
(5) 2002 AIR (SC) 2572, Dhannalal Vs. Kalawatibai.
(6) 2009 (10) SCC 223 FGP Ltd. Vs.Saleh Hooseini
Doctor.
(7) 2016 (3) SCC 296, Kasturi Vs. M. Chinniyan.
25. On the basis of observations made in these cases,
the learned counsel submitted that the appellant of
Second Appeal No. 251 of 2011, the plaintiff of Special
Civil Suit No. 65 of 1996 could have represented all
the co-owners of the suit property. The facts of these
reported cases were different and relevant facts of
present case are already quoted. These cases cannot
help the appellant to show that the suit is tenable.
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26. The learned counsel for the Respondent, original
defendant no.2 placed reliance on two reported cases as
under:
(1) AIR 1997 Punjab and Haryana 155, Chand Kaur Vs.
Rajkur (died) and others
(2) AIR 19916 SUPREME COURT 196 (1), Bhoop Sing Vs.
Ramsing.
In the first case, the High Court has discussed
the conditions precedent for valid compromise in the
suit. In the second case, the Apex Court has laid down
that if compromise creates new rights, it needs to be
compulsorily registered. This proposition could have
been used against the present appellant in view of the
circumstances already mentioned. In the compromises,
virtually there is relinquishment of the rights, the
transfer of rights.
27. The material already discussed and circumstance
show that not only the other successors of Govind Joshi
but the successors of Rukhminibai were also necessary
parties. It is already observed that one of the
successors of Rukhminibai came to be deleted in the
first appeal by Shrikant. Vyankatesh was also
necessary party, as under the compromise it is shown
SA251-11&.odt
that he got some property and if the compromise fails
he also suffers. The discussion made also shows it
could have been decided whether the compromise was
given effect properly in the presence of the aforesaid
necessary parties. The point of bindingness of
compromise on the parties also could have been decided
in the presence of necessary parties.
28. The aforesaid discussion shows that the
plaintiff cannot say that he is absolute owner of the
suit property much less entire area of Gat No. 623. He
alone could not have challenged the sale deed made in
favour of defendant No.2 by defendant No.1 in view of
the circumstances already mentioned. Thus, the suit
itself was not tenable. In view of this circumstance,
the findings given by the courts below on other issues
were unwarranted and so there is no need to discuss
those findings. So the point formulated for hearing
the present appeal as substantial question of law is
decided against the appellant by presuming that the
more parties than the parties mentioned insubstantial
question of law were necessary party to the suit.
There is no need of consideration of any other question
as substantial question of law in the present matter.
Thus, it is not possible to interfere with the decision
SA251-11&.odt
given by the courts below against the present appellant
and Second Appeal No. 251 of 2011 needs to be
dismissed. Due to this decision, the other appeals like
Second Appeal Nos. 285/2013 and 790/2013 are also
liable to be dismissed and so all the three second
appeals stand dismissed.
29. Second Appeal No.790/2013 is dismissed and Writ
Petition No. 4016/2015 was filed in respect of interim
order made in Regular Civil Appeal No. 132 of 2007
against which the Second Appeal No. 790/2013 is filed.
Thus writ petition needs to be allowed as it is a
consequential order in view of dismissal of Second
Appeal No. 251 of 2011. In the result, the writ
petition is allowed and the interim order made in
favour of Shrikant of allowing him to withdraw the
amount is hereby set aside. The purchaser, Ashok Magar
is entitled to get that amount.
30. Rule is made absolute in aforesaid terms.
31. Pending civil applications stand disposed of.
( T. V. NALAWADE, J. )
JPC
