Bombay High Court
Mahadeo Madhoji Shitaye vs Kamlabai Shankar Nighot & 5 Others on 24 June, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 360 OF 2001
Mahadeo Madhaoji Shitaye,
aged about 68 years, Occ. Agriculturist,
R/o. Takli (Khurd), Post Ladegaon,
Tq. Karanja, Distt. Washim... APPELLANT
...VERSUS...
1]
Kamlabai Shankar Nighot,
aged 51 years, Occ. Agriculturist,
2] Badraji Govindrao Chakbe
through L.Rs
2(i) Gautam Badraji Chakre,
R/o. Tah. Karanja, Distt. Washim.
2(ii) Smt. Rajkanya Bhaskar Sontakke,
2(iii) Smt. Padma Ashok Wardhe,
Both R/o. Takadi (BK), Post
Ladegaon, Tah. Karanja (Lad),
Distt. Washim.
3] Ananda Akaram Tayade,
aged 46 years, Occ. Cultivator,
R/o. Akola, Distt. Akola.
4] Suresh Manikrao Chanekar,
aged about 41 years, Cultivator,
R/o. Mamargaon, Tq. Karanja,
Distt. Washim.
5] Sau. Malan Punjabji Turak,
aged about 36 years,
R/o. Wirgavan, Tq. Karanja, Ditt. Washim.
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6] Rukhminibai Govindrao Khade,
aged about 36 years, Occ. Household,
Wiravan, Tq. Karanja, Distt. Washim. RESPONDENTS
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Shri Dharaskar, Advocate h/f Shri Anand Parchure, Advocate, for
appellant.
Shri S.K.Sable, Advocate, for Respondent nos. 2 (i) to 2(iii)
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CORAM: R. K. DESHPANDE, J.
th
DATE : 24 JUNE, 2016 .
ORAL JUDGMENT
1] The trial Court passed a decree in Regular Civil
Suit No. 140 of 1990 on 26.02.1999. The operative portion is
reproduced below.
"1. The suit is decreed with costs.
2. It is hereby declared that sale deeds executed by
defendant No. 5 Murlidhar in favour of defendant
No.1 Ananda, defendant No. Badraji and defendant
No. 4 Suresh on dated 03.11.1988 and 25.05.1985
respectively are null and void and not binding upon
the plaintiff. The sale deed dated 22.02.1988
executed by defendant No. 4 Suresh in favour of
defendant No. 2 Kamlabai is null and void.
3. The defendant Nos. 1 to 3 do deliver the
possession of suit fields to the plaintiff on or before
31.03.1999.
4. The defendant do pay the costs of the suit to the
plaintiff and bear their own costs.
5. Decree be drawn accordingly".
2] The lower appellate Court has modified the
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aforesaid decree in Regular Civil Appeal No. 38 of 1999, on
06.10.2001. The operative portion of the judgment of the
appellate Court is reproduced below.
"The appeal is allowed partly.
The judgment and decree dated 26.02.1999
passed by the learned Civil Judge (J.D.) Karanja in
R.C.S. No. 140/90 is hereby set aside.
Suit of the plaintiff i.e. R.C.S. No. 140/90 is
decreed partly as under.
Suit sale deeds executed by defendant no.5
Murlidhar in favour of deft. Nos. 1, 3 and 4 and the suit
sale deeds executed by deft. No. 4 in favour of deff.
No. 2 Kamalabai are null and void except to the extent
of share of deft. No.5 Murlidhar.
Suit is dismissed so far as relief of recovery of
possession of suit land is concerned.
In the peculiar facts and circumstances of the
case, no order as to cost.
Decree be drawn accordingly".
3] In this second appeal, this Court has framed the
substantial question of law as under;
Was the learned first Appellate Court right
in holding that the Appellant should have
filed a suit for partition and separate
possession or to hold the property jointly
with the respondent Nos. 1 and 2?
4] Both the courts are concurrent in holding that the
suit property is the ancestral property of the plaintiff and
defendant No. 5 along with defendant Nos. 6 to 8. It is
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reported that original defendant Nos. 6 to 8 have executed
relinquishment deed in favour of the plaintiff in respect of the
suit property. The defendant No. 5 - Murlidhar Mahadeo
shitaye, the son of the plaintiff, has sold this property and
those sale deeds are held to be not binding upon the plaintiff
by both the Courts below. In para 11, the lower appellate
Court has held as under.
"It is settled law that when co-sharer transfers his
undivided share then purchaser of that undivided
share and other co-sharers should enjoy the land
jointly as per their shares. Purchaser cannot compel
for partition to the other co-sharers. However, if
co-sharers desires, they may ask partition and
separate possession of the suit land to the extent of
their shares. Here in the present case, in view of
admitted facts, plaintiff being one of the co-sharer has
two remedies namely either he may enjoy the suit land
jointly with defendant Nos. 1 to 4 or he may ask
partition and separate possession of suit land to the
extent of his share in suit land" .
5] In view of above, the lower appellate Court was
right in holding that the appellant should have filed suit for
partition and separate possession or to hold the property
jointly with respondent nos.1 and 2 - the original defendant
Nos. 2 and 3. It is also open for the appellant/plaintiff to
claim an injunction in such a suit to restrain the defendants
from interfering with his joint possession in the suit property.
The question of law is answered accordingly.
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In the result, there is no substance in the appeal.
The same is dismissed. No order as to costs.
JUDGE
Rvjalit
