Bombay High Court
Smt. Annapurnabai W/O Yadavrao ... vs State Of Mah. Thr. Collector, ... on 14 March, 2016
Bench: Ravi K. Deshpande
fa1512.08.J.odt 1/4
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.1512 OF 2008
1] Smt. Annapurnabai w/o Yadavrao Vinchurkar,
Aged about 80 years,
Occ: Cultivator.
2] Ku. Usha d/o Yadavrao Vinchurkar,
Aged about 55 years, Occ: Service.
Both resident of Shri Vijay Sambhare,
Walker Road, Near Gajanan Maharaj
Temple, Mahal, Nagpur - 32. ....... APPELLANTS
...V E R S U S...
1] State of Maharashtra through
its Collector, Amravati.
2] Sanjay s/o Keshavrao Vinchurkar,
Occ: Service, R/o Brahmanpuri,
Near the house of Dr. Saratkar Deshmukh,
Tah. & Post Warud, Dist. Amravati. ....... RESPONDENTS
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Shri N.G. Jetha, Advocate for Appellants.
Shri M.A. Kadu, AGP for Respondent No.1.
Shri P.R. Agrawal, Advocate for Respondent No.2.
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CORAM: R.K. DESHPANDE, J.
th MARCH, 2016.
DATE: 14
ORAL JUDGMENT
1] The challenge in this appeal is to the judgment and order
dated 29.07.2008 passed by the learned Ad hoc District District-2 at
Amravati in Special Civil Suit No.243 of 2003. The suit has been
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dismissed. Against it this appeal is preferred by the original plaintiffs.
2] The plaintiffs claimed absolute ownership over the 4 acres
and 29 gunthas of the land on the basis of the Will dated 09.12.1973
said to have been registered on 10.12.1973 executed by one Yadavrao
Devaji Vinchurkar. He sought further declaration in the suit that the
father of the defendant No.2 Keshavrao who is the son of the Yadavrao
had no authority to execute the Will in favour of his son, the defendant
No.2 on 05.05.2001 to bequeath the land i.e. admeasuring 4 acres 29
gunthas of the land. The plaintiff also claimed the decree of permanent
injunction restraining the defendant - claimant from creating any third
party interest in the suit property and the relief of possession has also
been asked for along with the mesne profit.
3] The trial court framed and answered the issues in the suit as
under:
Preliminary Issue Finding
01. Whether plaintiffs are exempted from
payment of Court fees on their claim? Yes
Issues Findings
01. Do the plaintiffs prove that late Yadaorao
Vinchurkar executed a Will dated 09.12.1973
and a family arrangement deed? No.
fa1512.08.J.odt 3/4
02. Do plaintiffs prove that they are owners of
suit fields by virtue of Will dated 09.12.1973? No.
03. Whether Will dated 05.05.2001 executed by
late Keshaorao Vinchurkar is null and void? Does not survive
04. Doest the defendant No. 2 prove that he is
exclusive owner of the suit field? No.
05. Whether plaintiffs are entitled for declaration
and injunction as prayed? No.
06.
Whether plaintiffs are entitled for possession of
suit field and damages of Rs.1,50,000/-? No.
07. What Order? As per final order
4] Undisputedly, Yadavrao was the owner of the property, the
plaintiff No.1 is the widow, plaintiff No.2 is the daughter, and the
defendant No.2 is the grandson of Yadavrao, being the son of Keshavrao.
In the absence of Will dated 09.12.1973, the plaintiffs and the defendant
No.2 would be entitled to 1/3 rd share in the suit property by way of
succession. The defendant No.2 could avoid this only on the ground that
he has perfected the title over the property by way of adverse possession.
5] Shri Agrawal, the learned counsel for the respondent No.2
submits that such a plea was raised, but no issue was framed on that and
there is no finding recorded either one way or the other. The trial court
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having recorded the finding that Will dated 09.12.1973 said to have
been executed by Yadavrao in favour of the plaintiff and the father of the
defendant No.2, could not have held that the question of validity of Will
dated 05.05.2001 said to have been executed by Keshavrao does not at
all survive. Not only that the trial court has further proceeded to hold
that the defendant No.2 has failed to prove that he is the exclusive owner
of the suit property. The entire approach of the trial court is totally
misdirected, and the findings are inconsistent. The judgment and order
passed by the trial court cannot therefore, be sustained and it will have
to be set aside with an order of remand for fresh consideration.
6] In the result, the appeal is allowed. The judgment and order
dated 29.07.2008 passed by the trial court in a Special Civil Suit No.243
of 2003 is hereby quashed and set aside. The matter is remitted back to
the trial court to decide it afresh with liberty to the parties to amend
their pleadings and to lead additional evidence. The parties to appear
before the trial court on 18.04.2016. The trial court to decide the suit
within a period of six months from the date of completion of the
pleadings. No costs.
JUDGE
NSN
