Bombay High Court
Balasaheb Ramkrishna Gondkar ... vs Murlidhar Narayan Sonawane on 30 August, 2016
Bench: S.P. Deshmukh
1 SA-537.12.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
SECOND APPEAL NO. 537 OF 2012
WITH
CIVIL APPLICATION NO. 9031 OF 2012
1. Balasaheb Ramkrishna Gondkar
(deceased through his L. Rs. )
1A. Mandakini Balasaheb Gondkar,
Age 39 years, occup. service,
1B. Sanket Balasaheb Gondkar,
Age : 20 years, occup. Education,
1C. Supriya Balasaheb Gondkar,
Age 18 years, occup. Education,
1D. Suyog Balasaheb Gondkar,
Age 16 years, occup. Eduction,
2. Rangnath Ramkrishna Gondkar,
Age 40 years, occup.
3. Smt. Drupadabai Ramkrishna Gondkar,
Age 75 years, occup. Household,
All r/o Kankuri Road, Shirdi,
Tq. Rahata, District Ahmednagar .. Appellants
versus
Murlidhar Narayan Sonawane,
Age 62 years, occup. Agril.,
R/o Shirdi, Taluka Rahata,
Dist. Ahmednagar, deceased,
through legal representatives :-
A] Smt. Chandrakala Murlidhar Sonawane [wife]
Age 57 years, occup. Household/Agriculture
B] Dnyeneshwar Murlidhar Sonwane [son]
Age 41 years, occup. Agriculture
C] Narendra Murlidhar Sonawane [son]
Age 31 years, occup. Agriculture
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2 SA-537.12.doc
D] Sau. Ujwala Satish Sawale [daughter]
Age 37 years, occup. Household
E] Kum. Anita Murlidhar Sonawane [daughter]
Age 35 years, occup. Household,
A to C and E R/o Gala No.10, Phula Market,
Saikrupa, Shirdi, Tq. Rahata,
Dist. Ahmednagar
D] is resident of Shingnapur, Tq. Newasa
Dist. Ahmednagar .. Respondents
-----
Mr. Shivaji T. Shelke, Advocate for appellants
Mr. Sanket S. Kulkarni, Advocate for respondents
ig CORAM :
DATE :
SUNIL P. DESHMUKH, J.
30th August, 2016
ORAL JUDGMENT:
1. Heard learned counsel for the parties.
2. After hearing the parties, it emerges that while second
appeal no.188 of 2011 had been decided by this court under order
dated 28-04-2011, following observations had been made:
'' 8. From the perusal of the Judgment of the lower appellate Court, it is
manifest that the lower appellate Court has not discussed the evidence on
record i.e. the oral evidence adduced on record, the various entries in the
revenue record and other attending circumstances, which were discussed by
the trial Court while delivering the Judgment. If the reasons given by the
trial Court, did not find favour with the lower appellate court, then the lower
appellate court was expected to deal with the same so as to show the
conscious application of mind by the District Court while reversing the said
finding.
9. As he Judgment of the lower appellate Court does not depict such an
exercise being done nor the consideration and re-appreciation of the
3 SA-537.12.doc
evidence on record, the said Judgment can not be sustained in law and it
would be appropriate to remit the parties back to the District Court for
decision afresh.
10. In light of the above, the substantial question of law are answered
accordingly. The impugned Judgment and decree passed by the District
Judge-2, Kopergaon dated 23/2/2011 in R. C.A. No. 21 of 2003 is quashed
and set aside the parties are relegated to the District Court. The parties shall
appear before the District Court on 13/6/2011. The District Court shall after
hearing the learned counsels decide the said Appeal afresh in light of what
has been observed above. ''
3. As such, it emerges that aforesaid second appeal ended up in
directions as appearing in paragraphs no. 8 to 10 in the judgment
reproduced hereinabove.
4. The appellate court on matter being remanded, has
dismissed regular civil appeal no. 81 of 2003 by judgment and
order dated 02-05-2012, relegating the parties to the lower court
for the purpose of filing pursis in regular civil suit no. 557 of 2011 so
as to refer the matter for mediation. It further transpires that none
of the parties had, in fact, willingly acceded before the appellate
court to resolution of dispute by mediation. It is this order on
remand of the matter, which is challenged in present second
appeal.
5. Learned counsel Mr. Sanket Kulkarni refers to that regular
civil suit no. 557 of 2011 for redemption and possession has been
decreed.
4 SA-537.12.doc
6. In the circumstances, impugned order appears to be not in
keeping with and is a result of falling oblivious of the directions
issued by this court under order dated 28-04-2011 in second
appeal no. 188 of 2011 and getting swayed by other considerations
is thus unsustainable and as such the matter is once again being
remitted to the appellate court for decision in the light of
observations in order dated 28-04-2011 in second appeal no. 188
of 2011 reproduced hereinabove, leaving it open to the parties to
take up such contentions as would be advised in facts, law and the
circumstances.
7. It would be expedient that the appeal being remitted as well
as the appeal, if the same is filed, from judgment and order in
regular civil suit no. 557 of 2011, be taken up by the same court.
8. Second appeal stands disposed of with aforesaid
observations.
SUNIL P. DESHMUKH,
JUDGE
pnd
