Bombay High Court
Sanket Subhash Pahade N/G Sunita ... vs Subhash Hiralal Pahade And Others on 5 July, 2016
Bench: T.V. Nalawade
1 S.A. 422.2014 - [J]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 422 OF 2014
1. Sanket S/o Subhash Pahade
Age : 11 Yrs., Minor.
2. Ssheetal D/o Subhash Pahade
Age : 13 Yrs., Minor.
3.
igChanchal D/o Subhash Pahade
Age : 16 Yrs., Minor.
Appellant Nos. 1 to 3 being
Minors, are u/g of next friend,
a real mother Sow. Sunita
Subhash Pahade, Age : 36 Yrs.,
Occ. Household, R/o :
Dharmabad, Tq. Dharmabad,
Dist. : Nanded.
4. Sow. Sunita Subhash Pahade
Age : 36 Yrs., Occ. Household,
R/o : Dharmabad, Tq. ..... APPELLANTS/
Dharmabad, Dist. : Nanded. [ORI. PLAINTIFFS]
V E R S U S
1. Subhash S/o Hiralal Pahade
Age : 55 Yrs., Occ. Business,
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R/o : Dharmabad, Tq.
Dharmabad, Dist. : Nanded.
2. Kaushalyabai W/o Hiralal Pahade
Age : 76 Yrs., Occ. Business,
R/o : Dharmabad, Tq.
Dharmabad, Dist. : Nanded.
3. Baby D/o Kantilal Tholia
Age : 30 Yrs., C/o
igKantilal Tholia, Convensing
Agent, Hawrah, Road No. 7,
Calcutta (Kolkatta)
[West Bengal].
4. Babli D/o Abheya Kumar
Age : 25 Yrs., Occ. Household,
R/o : Chailendra Kumar S/o
Laxmichand Sethi, Chauraha,
Kirana Chawdi, at Aurangabad
Dist. : Aurangabad.
5. Pooja D/o Abheya Kumar
Age : 22 Yrs., Occ. Household,
R/o : Chauraha,
Kirana Chawdi, at Aurangabad
Dist. : Aurangabad.
6. Mahaveer S/o Abheya Kumar
Age : 19 Yrs., Occ. Nil.,
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3 S.A. 422.2014 - [J]
R/o : Chauraha,
Kirana Chawdi, at Aurangabad
Dist. : Aurangabad.
7. Sow. Saroja W/o Vijaya Kumar
Kasliwal, Age : 40 Yrs., Occ.
Household, C/o Vijay Kumar
Kasliwal S/o Fatechand Kasliwal,
R/o : 21 C Ramnagar, Indoor
[M.P.].
8.
igUttamchand S/o Kishanchand Pahade
Age : 66 Yrs., Occ. Professor,
R/o : Pulgaon, Dist. Wardha,
[Maharashtra].
9. Subhash S/o Hiralal Godha
Age : 60 Yrs., Occ. Business,
R/o : Dharmabad, Tq.
Dharmabad, Dist. : Nanded.
10. Gulabchand S/o Shantilal Jain
Age : 65 Yrs., Occ. Business,
R/o : Dharmabad, Tq. ..... RESPONDENTS/
Dharmabad, Dist. : Nanded. [ORI. DEFENDANTS]
.....
Mr. A.M.Gaikwad, Advocate for Appellants.
Mr. A.B.Shinde, Advocate for R - 1,2 & 7.
Mr. A.G.Godhamgaonkar, Advocate for R - 8 & 9.
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4 S.A. 422.2014 - [J]
CORAM : T.V.NALAWADE, J.
DATE OF JUDGMENT : 05/07/2016
JUDGMENT :
1. The Appeal is filed against the Judgment
and Decree of R.C.S. No. 36/2002 which was pending in
the Court of the Civil Judge [Jr.Division], Dharmabad
and also against the Judgment and Decree of R.C.A. No.
23/2008 which was pending in the Court of the District
Judge, Biloli, district Nanded. The Suit filed by the
appellant for declaration and injunction in respect of one
house property is dismissed by the Courts below. Heard
both sides.
2. In short, the facts leading to the institution of
the Appeal can be stated as follows.
Plaintiff No. 4 is the wife of defendant No. 1.
Plaintiff Nos. 1 to 3 are issues of plaintiff No. 4 born
from defendant No. 1. Defendant No. 2 is the mother of
defendant No. 1. It is the case of the plaintiffs that
defendant No. 1 is acting as per the instigation of
defendant No. 2, mother, and he is trying to dispose of
the suit property. It is the case of the plaintiff No. 4 that
5 S.A. 422.2014 - [J]
she has filed the Suit to protect the interest of her minor
issues. It is her case that one of the defendants wants to
grab the property and false record is created of lease in
favour of one of the defendants.
3. The suit property is given house No. 3-7-35
in the record of local body, Dharmabad and it is situated
at Mahaveer Nagar. The size of the property East - West
is 23 feet and North - South is 56.5 feet. It is the case of
the plaintiffs that they are living on first floor of the
building.
4. It is the case of the plaintiffs that Hiralal,
father of defendant No. 1, was owner of the suit property
and he died on 14/04/1994. It is the case of the
plaintiffs that Hiralal has left behind one son, widow and
3 daughters. Some daughters were made parties to the
Suit by the plaintiffs but the Suit was dismissed as against
them as no steps were taken by the plaintiffs to serve
those daughters of Hiralal. Defendant No. 8 is brother of
Hiralal and it is contended that defendant No. 8 has no
concern with the suit property.
6 S.A. 422.2014 - [J]
5. It is the case of the plaintiffs that Special
Civil Suit No. 71/1999 is filed by defendant No. 2 but it is
a collusive Suit and the intention behind the Suit is to
deprive the plaintiffs of their right in the suit properties.
It is contended that defendant No. 9 is not in possession
of the portion of the suit house but the record is created
that he is in possession. It is contended that in Special
Civil Suit No. 71/1999, defendant Nos. 1 to 8 are made
party defendants by defendant No. 2 to use this record. It
appears that defendant Nos. 3 to 7, daughters of Hiralal
were also parties to the partition Suit. Following reliefs
were claimed by the plaintiffs in the present
matter.
[i] Declaration that defendant No. 2, widow of
Hiralal, has relinquished her share in the suit
property.
[ii] Defendant Nos. 3 to 7, daughters of Hiralal,
had no share in the suit property.
[iii] Defendant Nos. 8 and 9 have no concern
with the suit property.
[iv] Hiralal was the exclusive owner of the suit
property.
7 S.A. 422.2014 - [J]
[v] The decree of partition of Special Civil Suit
No. 71/1999, which was likely to be given is
collusive and it can not be executed against
the plaintiffs. The relief of injunction was
also claimed by plaintiffs to protect their so
called possession over first floor of the
building.
6. Defendant Nos. 1, 2 and 10 filed joint
Written Statement. They contend that Hiralal and his
brother, defendant No. 8, had equal shares in the suit
property as the property was their ancestral property.
They contended that Special Civil Suit No. 71/1999 filed
for partition was already decreed, but this circumstance
is concealed from the Court. They contend that
defendant No. 2 had not relinquished her share in the
property.
7. Issues were framed on the basis of aforesaid
pleadings. Both sides gave evidence. Copy of Judgment
delivered in Special Civil Suit No. 71/1999 was produced
on record. This document shows that Hiralal got ½ share
and defendant No. 8 got ½ share in the aforesaid suit
property.
8 S.A. 422.2014 - [J]
8. In view of nature of relief claimed in the
present Suit, defendant Nos. 3 to 7, daughters of Hiralal,
were necessary parties to the Suit. As the Suit was
dismissed as against them, relief of declaration that
Hiralal was the owner of entire property and it was his
absolute property, could not have been given. Further,
declaration in respect of the decision which was likely to
be given in Special Civil Suit No. 71/1999, could not
have been given and for that relief the Suit was
premature. On 23/07/2014, this Court [other Hon'ble
Judge] admitted the Appeal on following substantial
questions of law viz. (I) and (ii), which reads as
under :
(i) Whether learned Judge of the lower
appellate Court ignored evidence while
deciding the issue of possession ?
(ii) Whether the Courts below ignored the
evidence while deciding the appellants' share
in the suit property ?
9. The pleadings of the plaint show that it is not
disputed that the property was standing in the name of
father of defendant No. 1 in the relevant record. No
9 S.A. 422.2014 - [J]
record is produced to show that Hiralal was absolute
owner. Further, Suit for partition was already filed in
which brother of Hiralal had claimed ½ share. Even if
these circumstances are ignored, the circumstance that
Hiralal has left behind his heirs viz. 1 son, 4 daughters
and widow, can not be ignored. All these successors of
Hiralal have right to enjoy the property. If partition takes
place amongst the successors of Hiralal, son of Hiralal,
defendant No. 1 can get some portion and only in that
portion, plaintiffs will have share. In view of these
circumstances, declaration as claimed by the plaintiffs
could not have been given. If property is joint Hindu
family property of not only of plaintiffs and some
defendants, but also the daughters of Hiralal, the relief of
injunction could not have been given in favour of the
plaintiffs. In view of these circumstances, there was no
other alternative before the Court below than to dismiss
the Suit. Though the aforesaid substantial questions are
formulated, this Court holds that no substantial question
of law as such is involved in the matter.
10. In the result, Second Appeal stands
dismissed. In view of dismissal of the Second Appeal,
10 S.A. 422.2014 - [J]
Civil Applications do not survive and stand disposed of.
[T.V.NALAWADE, J.]
KNP/S.A. 422.2014 - [J]
