Bombay High Court
Smt. Kamlabai Vishwanath Ozalwar ... vs Shri Gajanan Narayan Joshi And 3 ... on 24 June, 2016
Bench: Z.A. Haq
1 wp2787.14
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.2787/2014
1. Smt. Kamalabai Vishwanath Ozalwar,
aged about 95 Yrs., Occu. Household,
R/o Gandhi Chowk, Akola.
2. Smt. Shashikala Prabhakar Yennawar,
aged about 73 Yrs., Occu. Household,
R/o Somalwada, Nagpur.
3. Vasant Vishwanath Ozalwar,
aged about 70 Yrs., Occu. Retired
Serviceman, R/o Gandhi Chowk,
Akola.
4. Anant Vishwanath Ozalwar,
aged about 68 Yrs., Occu. Retired,
R/o Balaji Nagar, Gaurakshan Road,
Akola.
5. Sau. Sarala Dashrath Shriramwar,
aged bout 66 Yrs., Occu. Household,
R/o Usmashashi, Hyderabad (A.P.)
6. Chintaman Vishwanath Ozalwar,
aged about 64 Yrs., Occu. Retired,
R/o Gandhi Chowk, Tajanapeth,
Akola.
7. Sou. Nirmala Arvind Shingewar,
aged about 61 Yrs., Occu. Household,
R/o Somalwada, Nagpur.
8. Sau. Alka Vijayrao Karnewar,
aged about 58 Yrs., Occu. Household,
R/o Pandharkawada, Distt. Yavatmal. ..Petitioners.
..VS..
1. Shri Gajanan Narayan Joshi,
aged about 60 Yrs., Occu. Business,
R/o Deoraobaba Chawl, Akola,
Tq. and Distt. Akola.
::: Uploaded on - 02/07/2016 ::: Downloaded on - 30/07/2016 06:32:02 :::
2 wp2787.14
2. Shri Shriniwas Ramchandra Ozalwar,
aged about 87 Yrs., R/o Tajnapeth,
Akola, Tq. and Distt. Akola.
3. The Vidarbha Urban Co-operative Bank
Ltd., through its Manager/Authorized
Officer, J.P. Chowk, M.G. Road, Akola,
Tq. and Distt. Akola.
4. The joint Civil Judge, Junior Division,
Akola, Tq. and Distt. Akola. ..Respondents.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Ms. R.D. Raskar, Advocate for the petitioners.
Shri S.A. Mohta, Advocate for respondent No.1.
Shri S.P. Bhave, Advocate for respondent No.3.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
CORAM : Z.A.HAQ, J.
DATED : 24.6.2016.
ORAL JUDGMENT
1. Heard Ms. R.D. Raskar, Advocate for the petitioners, Shri S.A. Mohta,
Advocate for the respondent No.1 and Shri S.P. Bhave, Advocate for the respondent
No.3. The respondent No.2 is reported to be dead.
2. Rule. Rule made returnable forthwith.
3. In Regular Civil Suit No.599/1980 filed by the predecessor of petitioners
against his brother (respondent No.2 in this petition), a preliminary decree is passed
on 7th March, 1990 upholding the claim of the plaintiff for partition and separate
possession of his half share in the suit property. The final decree proceedings are
going on. During the pendency of final decree proceedings, the respondent No.1 has
purchased the share of respondent No.2 (original defendant).
4. The petitioners are opposing the execution proceedings on the ground
3 wp2787.14
that the property is not divisible. The Executing Court, by the impugned order, has
recorded that the suit property is divisible by metes and bounds. The learned
Advocate for the petitioners has pointed out the copy of the pursis filed by the Court
Commissioner before the Executing Court on 17 th June, 1992. The Court
Commissioner has stated in the pursis that the suit property cannot be divided. The
learned Advocate for the petitioners has pointed out the Site Inspection Report
submitted by Shri Pradip Ingole, Architect. The point No.9 of this report shows that
the building is old, the existing structure is old and it will not be possible to
modify/renovate/partition the building.
The Executing Court considered these documents, however, got
influenced by stray admission given by the Architect in his cross-examination that the
building can be divided. The condition of the building, is clear from the photographs
placed on the record of this petition at page Nos.118 to 127. The respondents have
not disputed the photographs.
5. In my view, the Executing Court has committed an error in giving
unwanted weightage to the stray admissions/statements of the Architect in the
cross-examination, overlooking the contents of pursis filed by the Court
Commissioner and the exhaustive report submitted by the Architect.
The learned Advocate for the respondent No.1 has pointed out an order
passed by the Executing Court on 17th June, 1992 which is as follows:
"1) Today Commissioner Shri M.B. Pande Advocate has submitted his
report vide Pursis Ex.20. According to him the house in question is in
use and occupation of both parties and its situation is such that no
division can be effected. So also according to him suggestions need to be
called from the parties about their choice to retain particular portion of
the house amicably. Hence, parties to give their suggestions accordingly.
4 wp2787.14
Adjourned for the same. Parties to note."
In this order, it is recorded by the Executing Court that as per the report
given by the Court Commissioner the division of building cannot be effected. The
Executing Court left it to the wisdom of the parties to come out with a solution.
Even after 24 years, the petitioners and the respondent No.1 are at loggerheads and
there are no chances of any amicable solution. The Executing Court while passing
the impugned order has not considered the order passed by it on 17 th June, 1992.
In view of the above facts, I find that the impugned order is not
sustainable and has to be set aside.
6. Hence, the following order:
(i) The order passed by the Executing Court on 12th August, 2013 concluding
that the suit property is divisible by metes and bounds, is set aside.
(ii) Relying on the pursis filed by the Court Commissioner on 17 th June, 1992
and point No.9 of the report submitted by Architect Shri Pradeep Ingole on 14 th
October, 2008, it is held that the suit property cannot be divided to satisfy the claim
of the respective parties as per the preliminary decree.
(iii) The Executing Court shall proceed further as per Section 2 of the Partition
Act, 1893.
(iv) Rule is made absolute in the above terms.
(v) In the circumstances, the parties to bear their own costs.
JUDGE
Tambaskar.
