Bombay High Court
Fakira S/O Tukaram Shinde, Minor ... vs Tukaram S/O Kisan Shinde And 2 ... on 11 July, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.416 OF 2014
1] Fakira s/o Tukaram Shinde,
Aged about 13 years, Minor through
Guardian Deepabai Tukaram Shinde,
Aged about 39 years, Occ: Household.
2] Deepabai w/o Tukaram Shinde,
Aged about 39 years, Occ: Household.
Both No.1 and 2 residents of Wadgaon
(Pinjar), Tq. Barshitakli, Dist. Akola.
3] Gangaram s/o Kisam Shinde,
Aged about 54 years, Occ: Agriculture.
4] Bhagwan s/o Kisan Shinde,
Aged about 49 years, Occ: Agriculture.
5] Mainabai wd/o Kisan Shinde,
Aged about 79 years, Occ: Agriculture.
Appellants No.3 to 5 are residents of
Januna, Tq. & Dist. Buldhana. ....... APPELLANTS
...V E R S U S...
1] Tukaram s/o Kisan Shinde,
Aged about 51 years, Occ: Agriculturist.
2] Ishwar alias Dhanraj s/o Tukaram Kisan
Shinde, Aged about 5 years (Minor)
through guardian and next friend
respondent No.1.
Respondent No.1 and 2 both resident of
Januna, Tq. & Dist. Buldhana.
3] Gulabrao s/o Asaram Kalyankar
Aged 39 years, Occ: Labourer,
R/o Januna, Tq. & Dist. Buldhana. ....... RESPONDENTS
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Shri T.S. Deshpande, Advocate for Appellants.
Shri Abhay Sambre, Advocate for Respondent Nos.1 & 2.
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CORAM: R.K. DESHPANDE, J.
th JULY, 2016.
DATE: 11
ORAL JUDGMENT
1] Regular Civil Suit No.176 of 2002 for partition and separate
possession was decreed by the trial Court on 24.08.2005. Regular Civil
Appeal No.81 of 2005 was preferred by the original defendant Nos.1 to
3. The plaintiffs were the respondent Nos.1 to 5 in the said appeal.
The lower Appellate Court passed an order proceeding ex-parte against
the plaintiff Nos.1, 2 and 4. The application filed for setting aside order
proceeding ex-parte filed by the plaintiff No.3 was rejected, as not
pressed. The plaintiff Nos.1 and 2 also filed cross-appeal at Exhibit-45.
Without deciding the cross-appeal at Exhibit-45, the lower Appellate
Court proceeded to decide the matter on merits and this judgment and
order passed is the subject-matter of challenge in this appeal.
2] On 31.10.2014 this Court passed an order as under:
Leave to correct name of respondent No.3 in the cause
title of the appeal.
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It is submitted by the learned Counsel for the appellants
that the suit for partition and separate possessed was partly
decreed. The claims of plaintiff Nos.1, 2 & 5 were dismissed,
while relief was granted to plaintiff nos.3 & 4 and defendant
No.1. Being aggrieved thereby the defendants had filed
Regular Civil Appeal No.81 of 2005 challenging the aforesaid
decree. In said appeal, the original plaintiff Nos.1 & 2 had
filed cross appeal vide Exhibit-45. It is submitted that the
lower appellate Court, however, finally decided the appeal
filed by the original defendants without considering the cross
appeal filed by the plaintiff Nos.1 & 2.
Issue notice for final disposal of the second appeal
returnable on 25-11-2014. In addition to regular mode of
service, the appellants to serve the respondents by registered
post with acknowledgement due.
3] All the parties have been served. However, Shri Abhay
Sambre, the learned counsel appears for the respondent Nos.1 and 2,
and no one appears for the other respondents though notice for final
disposal of the matter was issued. In view of this, it is not necessary for
this Court to issue fresh notices to the respondents, who are not present
before this Court and the matter can be decided finally.
4] Admit.
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5] Heard finally by consent of the learned counsels appearing
for the parties.
6] The lower Appellate Court could not have proceeded to
decide Regular Civil Appeal No.81 of 2005 on its own merit without
considering the cross-appeal at Exhibit-45 filed by the plaintiff Nos.1 and
2. If the plaintiff Nos.1 and 2 were not present before the Court, the
Court would have dismissed the cross-appeal in default and then it could
proceed to decide the appeal on merits. This has not been done by the
lower Appellate Court. In the absence of adjudication on the cross-appeal
the judgment and order passed by the lower Appellate Court cannot be
sustained. The question of law framed by this Court is answered
accordingly.
7] In the result, the judgment and order dated 24.08.2005
passed in Regular Civil Appeal No.176 of 2002, is hereby quashed and
set aside. The matter is remitted back to the lower Appellate Court to
decide the appeal as well as cross-appeal at Exhibit-45 on their own
merits. The parties to appear before the lower Appellate Court
on 22.08.2016. It shall not be necessary for the lower Appellate Court to
issue fresh notices to the other respondents, who have not appeared
before this Court in response to the notice for final disposal issued by this
Court. Needless to say that they shall remain present before the lower
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Appellate Court on 22.08.2016. The lower Appellate Court to decide the
appeal within a period of three months from the date of first appearance
of the parties before it. No order as to costs.
JUDGE
NSN
