Bombay High Court
Eknath S/O Ankush Gavai And 4 ... vs Smt. Pansheela Dnyandeo Kharat ... on 18 July, 2016
Bench: Ravi K. Deshpande
1 sa19.14.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 19 OF 2014
1] Eknath s/o Ankush Gavai,
aged about 62 years, Occ. Service
and Agriculturist,
2] Bhanudas s/o Ankush Gavai,
aged about 65 years, Occ. Agriculturist,
3]
Madhukar s/o Ankush Gavai,
aged about 50 years, Occ. Agriculturist,
4] Vishal s/o Eknath Gavai,
aged about 27 years, Occ. Service,
5] Pramod s/o Bhanudas Gavai,
aged about 30 years, Occ. Agriculturist,
All R/o. Jawalkheda, Tq. Deulgaon-Raja,
Distt. Buldhana....... APPELLANTS
...VERSUS...
1] Smt. Panchashila Dnyandev Kharat,
aged about 50 years, Occ. Household,
R/o. Sanjay Nagar, Deulgaon-Raja,
Distt. Buldhana.
2] Syd. Gaffar Suy. Meer,
aged about 63 years, Occ. Agriculturist,
R/o. Ward No. 9, Deulgaon-Raja,
Buldhana ...... RESPONDENTS
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Shri N.A.Padhye, counsel for appellants.
Shri N.B.Kalwaghe, counsel for Respondent no. 1
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2 sa19.14.odt
CORAM: R. K. DESHPANDE, J.
th
DATE : 18
JULY, 2016 .
ORAL JUDGMENT
1] Admit.
Heard finally by consent of the learned counsels
appearing for the parties.
2]
In Regular Civil Suit No. 3 of 2005, the trial Court
passed a decree on 30.06.2008 holding that Nagabai could
not have sold 85R of land initially to defendant No.4 and
subsequently by defendant no.4 to defendant nos. 5 and 6 on
23.07.2004. The trial Court passed a decree holding that the
defendants shall be at liberty to file a suit for partition and
separate possession in respect of 60R of land against
Panchsheelabai and further decree is passed to direct
immediate delivery of possession of the said 85R of the land
to the plaintiff.
3] This decree passed by the trial Court was the
subject matter of challenge in Regular Civil Appeal No. 85 of
2008. Though the lower appellate Court dismissed the
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appeal on 01.07.2013, the decree passed by the trial Court
is substituted by a modified decree. This decision of the
lower Appellate Court rendered on 01.07.2013 is the subject
matter of challenge in this appeal by original defendant nos.
1, 2, 3,5 and 6.
4] The matter was heard for quite some time on last
occasion and it is found that the lower appellate Court having
dismissed the appeal, could not have modified the decree
passed by the trial Court without there being any cross
objection, and the decree passed by the trial Court should
not have been disturbed.
5] The matter was adjourned so as to enable the
learned counsel appearing for the parties to think over it and
make a statement accordingly. Both the learned counsels
submit after taking instructions from their clients that the
decree passed by the trial Court can be restored with liberty
as was granted by the trial Court for filing a separate suit for
partition and separate possession of 60R of land.
6] In view of above, the second appeal is allowed
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by setting aside the judgment and order dated 01.07.2013,
passed by the lower Appellate Court in Regular Civil Appeal
No. 85 of 2008 and the decree passed by the trial Court on
30.06.2008 in Regular Civil Suit No. 3 of 2005 is restored. No
order as to costs. This shall, however, be subject to further
orders to be passed in the suit to be filed as per the order
passed by the trial Court.
7] All the issues in respect of title over the suit
property are kept open to be agitated in a suit and none of
the observations made by the Courts below can come
between the parties.
8] The learned counsel Shri Padhye appearing for
the appellant submits that the time may be granted to the
appellant to hand over the possession of the suit property to
the plaintiff. Hence, within a period of 60 days from today,
the possession of the suit property shall be handed over to
the parties, failing which the execution of decree shall
immediately follow.
JUDGE
Rvjalit
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C E R T I F I C A T E
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of original signed Judgment/Order.
Uploaded by : R.V.Jalit, P.A. Uploaded on : 20 July, 2016
