Moharsingh S/O Rupchand Banothe ... vs Bharatlal S/O Dhanu Lilhare
2016 Latest Caselaw 6783 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         : NAGPUR BENCH : NAGPUR.




                                                                 
                           WRIT PETITION NO. 3337 OF 2015

    (1) Moharsingh S/o Rupchand Banothe,  




                                                                
          Aged 54 yrs., Occ. Service
          Cultivator, R/o Karanja, 
          Tah. & Dist. Gondia 

    (2) Smt. Kamlabai W/o Soma Lilhare, 




                                                  
          Occ. Cultivator, R/o Tumkheda, 
          Tah. & Dist. Gondia    
                               ig                                                 ... Petitioners

           // VERSUS //
                             
    Bharatlal S/o Dhanu Lilhare, 
    Aged 66 yrs., Occ. Cultivator, 
    R/o Navegaon (Pandhrabodi), 
    Tah. & Dist. Gondia.                                                         ... Respondent
      


    -------------------------------------------------------------------------------------------------
   



    Shri Prashant Gode, Advocate for the petitioners
    Shri S. S. Dhengale, Advocate for the respondent 
    -------------------------------------------------------------------------------------------------





                                                 CORAM :  PRASANNA B. VARALE, J.

                                                  DATE    : 30-11-2016.

    ORAL JUDGMENT





                     Rule.  Rule made returnable forthwith.  

2. Heard Shri Gode, learned counsel for the petitioners and

Shri Dhengale, learned counsel for the respondent.

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3. By the present petition, the petitioners challenge the

order dated 12-2-2015 passed by learned 2nd Joint Civil Judge Junior

Division, Gondia.

4. Brief facts giving rise to the present petition can be

summarized as follows.

The respondent instituted suit in the Court of Civil Judge Junior

Division, Gondia, namely, Regular Civil Suit No. 487/2012 for

partition, separate possession and declaration in respect of certain

agriculture land at Village Karanja, Tahsil and District Gondia. It was

the submission of the respondent-plaintiff that one Dayaram Banothe

was possessing and the owner of the said land. Dayaram was having

two sons, namely, Budha and Surji. It was the further contention of

the respondent-plaintiff that Budha was having one daughter, namely,

Smt. Harkibai and the respondent Bharatlal is son of Smt. Harkibai. It

is submitted in the plaint that by preparing an illegal and void will

deed, the share in the property is claimed by the defendants. It may

not be necessary to refer to the other details. Suffice to say that the

respondent-plaintiff by way of said suit prayed for half share in the

joint Hindu family property and also prayed for declaration that the

will deed executed on 7-7-1978 in favour of the defendant no. 1 by

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Budha Dayaram Banothe be declared as null and void. The petitioners

i.e. defendants by filing written statement opposed the contentions of

the respondent-plaintiff. It was the specific contention in the written

statement that Budha died issueless, as such, there was no question of

having any daughter, namely, Harkibai. On the rival contentions of

the parties, the learned Court below framed the issues, namely :

(1) Whether plaintiff proves his relation with deceased

Budha ?

(2) Whether deceased Budha was having rights to execute the

will dated 7-7-1978 in favour of defendant no. 1 ? (3) Whether plaintiff is having share in the suit property ? (4) Is the plaintiff entitled for partition and separate

possession ?

(5) Is the plaintiff entitled for declaration as prayed ? (6) Is the plaintiff entitled for mense profits ?

(7) What order and decree ?

An additional issue was framed on 18-4-2013 that :

(1-A) Whether plaintiff proves that deceased Budha was

having daughter namely Harkibai ?

The plaintiff then submitted an application for framing additional

issues namely,

(1) Whether defendant prove that late Budha died issueless ? (2) Whether late Budha had begotten a daughter namely Late Harkit,

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mother of plaintiff on 21-12-1928 as per Government record ? (3) Whether late Budha grown up and married his only daughter late

Harkitbai with Dhanu Lilhare of Village Navegaon ?

The application seeking framing of additional issues was allowed

by order dated 4-10-2014. The petitioners-defendants filed an

application for seeking deletion of the additional issues framed on

11-11-2014 from 2-A to 2-C. The learned 2 nd Joint Civil Judge Junior

Division, Gondia by order dated 12-2-2015 rejected the application.

5. Shri Gode, learned counsel for the petitioners submitted

that the learned Court below only on the ground that the application

submitted by the petitioners was at a belated stage, rejected the

application. Shri Gode, learned counsel further submitted that the

order passed by the learned Court below is unsustainable, firstly, on

the ground that no opportunity was granted to the petitioners to raise

objections or submit their say on the application seeking framing of

the additional issues. He submitted that on 4-10-2014, the application

was filed and without there being any opportunity granted to the

petitioners to raise any objection, on the very day i.e. on 4-10-2014,

the application was allowed. Shri Gode, learned counsel further

submitted that the learned Court below also failed to consider that the

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additional issues framed by the Court below i.e. issue no. 2-A was in

the nature of casting a negative burden on the petitioners-defendants

to prove a certain fact. Shri Gode, learned counsel then submitted

that other additional issues permitted to be framed, namely, 2-B and

2-C were the issues which were already covered by issue no. 1 and

1-A.

6.

Shri Dhengale, learned counsel for the respondent

supported the order impugned in the petition.

7. On perusal of the material placed on record and on

hearing the submissions of learned counsel appearing for the parties,

I find considerable merit in the submissions of Shri Gode, learned

counsel for the petitioners. Perusal of the copy of plaint submitted

before the learned Civil Judge Junior Division, Gondia shows that

family tree was submitted at the instance of respondent-plaintiff. It is

submitted in the plaint that Budha was having one daughter, namely,

Smt. Harkibai and Harkibai is mother of plaintiff having no other male

or female issue except the plaintiff. In written statement filed by the

petitioners-defendants, the petitioners while disputing the genealogy

shown by the respondent-plaintiff submitted the other genealogical

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tree. It is submitted that Dayaram was having two sons, namely

Budha and Surji and Budha died issueless. The learned Court below

had framed the issues on 30-3-2013 including the first issue, namely,

whether plaintiff proves his relation with deceased Budha ?

and subsequently on 18-4-2013 framed additional issue, namely,

Whether plaintiff proves that deceased Budha was having daughter

namely Harkibai ? There was merit in the submissions of Shri Gode,

learned counsel that these issues were rightly framed by the Court

below on the rival contentions of the parties. There is also merit in

the submission of Shri Gode that additional issues permitted to be

framed, namely 2-A was casting negative burden on the petitioners-

defendants. As stated above, the contention was raised by the

respondent-plaintiff that Budha was having a daughter, namely,

Harkibai and this contention was denied by the defendants, as such,

learned Court below could not have framed the issue casting negative

burden on the petitioners-defendants, namely, whether the defendants

prove that late Budha died issueless ? Shri Gode, learned counsel was

right in submitting that issue nos. 2-B and 2-C were already covered

in issue no. 1 and 1-A.

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8. Perusal of the material also shows that the application

was filed for framing of additional issues on 4-10-2014 and on the

very day, the application was allowed. As such, the learned counsel

for the petitioners was right in submitting that if opportunity of

hearing would have been granted to the petitioners, the petitioners

could have either objected for framing of additional issues or would

submitted that the so called additional issues were covered by the

issues framed earlier, but no such opportunity was granted.

Considering all these aspects, the reasons assigned by the learned

lower Court for allowing the application are not justifiable. The

learned lower Court also erred in observing that the application was

filed only to prolong the proceedings on the backdrop of the fact that

if the opportunity would have granted to the petitioners while

deciding the application, the petitioners could have pointed out to the

Court their objection at that very point of time and as such, no

opportunity was granted to the petitioners and the petitioners-

defendants were left with no choice to file an application for deletion

of additional issues. Considering all these aspects, I am of the opinion

that the order impugned is unsustainable. The writ petition is

allowed. The order passed by the learned lower Court dated

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12-2-2015 thereby rejecting the prayer for deletion of additional issues

framed on 11-11-2014 from 2-A to 2-C is quashed and set aside.

The writ petition is disposed of in above terms.

JUDGE wasnik