Bombay High Court
Shri. Shaikh Mustafa Yasin vs Shri. Sharad Ganesh Tisgaonkar on 13 October, 2016
Bench: R.D. Dhanuka
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vai
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.197 OF 2013
WITH
CIVIL APPLICATION NO.526 OF 2013
IN
SECOND APPEAL NO.197 OF 2013
Shri Shaikh Mustafa Yasin )
Age : 58 years, Occupation Riksha Driver )
Residing at 212, Nana Peth, ig )
Pune - 411 002. ) ...Appellant
Ori. Defendant
....Versus....
1) Shri Sharad Ganesh Tisgaonkar )
Age : 70 years, Occupation - Retired )
)
2) Shri Vilas Ganesh Tisgaonkar )
Age : 65 Years, Occupation - Retired )
)
3) Shri Suhas Ganesh Tisgaonkar )
Age : 58 years, Occupation - Retired )
)
All residing at : Yogita Apartments, )
Lokesh Housing Society, )
Bibvewadi, Pune - 411 037 ) ...Respondents
...Ori.Plaintiffs
Mr.D.M. Gupte for the Appellant.
Mr.Jaydeep Deo for the Respondent Nos.1 to 3.
CORAM : R.D. DHANUKA, J.
RESERVED ON : 4TH OCTOBER, 2016
PRONOUNCED ON : 13TH OCTOBER, 2016
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JUDGMENT :-
1. By this appeal filed under section 100 of the Code of Civil
Procedure, 1908, the appellant (original defendant) has impugned the
judgment and decree dated 9th January, 2013 passed by the learned
District Judge - 5, Pune, allowing the appeal (Civil Appeal No.102 of
2007) filed by the respondents (original plaintiffs) and setting aside
the judgment and decree passed by the learned Second Joint Civil
Judge, Senior Division, Pune in Special Civil Suit No.113 of 1994
dated 20th November, 2006 and partly allowing the said suit.
2. The learned District Judge - 5, Pune directed the appellant
(original defendant) to deliver possession of 4 Khan premises
situated at second floor, CTS No.212, Nana Peth, Pune to the original
plaintiffs on or before 15th April, 2015 and directed the defendant to
deliver the symbolic possession of the share of Godubai to the extent
of half share.
3. The first appellate Court also declared that the plaintiffs had
acquired the right, title and interest in the suit property in pursuance
of the Will Deed dated 13rd October, 1935 executed by Shankar Daji
Tisgaonkar to the extent of half share and the right of Godubai. The
first appellate Court declared that the Will Deed dated 18th April,
1988 executed by Godubai in favour of the defendant was illegal and
not binding on the plaintiffs. The first appellate Court however,
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dismissed the prayer for damages to the extent of Rs.36,500/-
claimed by the plaintiffs and ordered a separate enquiry for future
mesne-profits under Order 20 Rule 12 of the Code of Civil Procedure,
1908. The first appellate Court also granted perpetual injunction
against the defendant from alienating the portion of the house
No.212, Nana Peth, Pune. Some of the relevant facts for the purpose
of deciding this appeal are as under :
4. The parties are referred in this judgment as per their
original status before the trial Court.
5. It is the case of the plaintiffs that the land bearing CTS
No.212, situated at Nana Peth, Pune is the subject matter of the suit
which property originally belonged to Shankar Daji Tisgaonkar. The
said Shankar Daji Tisgaonkar had two wives i.e. first wife viz.
Parvatibai and second wife viz. Godubai. A daughter i.e. Prayagbai
was born from the wedlock of the said Shankar Daji Tisgaonkar with
the first wife viz. Parvatibai. On 13th October, 1935, the said Shankar
Daji Tisgaonkar executed a Will and granted life interest in ½ of his
suit property each in favour of Parvatibai, his first wife and Godubai,
his second wife. It is the case of the plaintiffs that in the said Will, it
was also provided that after the demise of Parvatibai, their daughter
Prayagbai through Parvatibai will have half of the property during her
life time. It is the case of the plaintiffs that thereafter the suit property
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was to devolve from the legal heirs and representatives of the said
Shankar Daji Tisgaonkar i.e. adopted son Ganesh.
6. On 16th October, 1935, the said Shankar Daji Tisgaonkar
adopted Ganesh. There was no issue out of the wedlock of the said
Shankar Daji Tisgaonkar with Godubai. It is the case of the plaintiffs
that after the demise of Prayagbai, who had life interest in the half of
the suit property, in which the legal heirs and representatives of the
said Shankar Daji Tisgaonkar i.e. Ganesh had an exclusive right, title
and interest in the suit property.
7. On 19th October, 1935, the said Shankar Daji Tisgaonkar
expired. In the year 1949, the said Parvatibai, the first wife of the said
Shankar Daji Tisgaonkar expired. In the year 1955, the said
Prayagbai, daughter of Shankar Daji Tisgaonkar and Parvatibai filed
a suit against Godubai, the second wife of the said Shankar Daji
Tisgaonkar for possession of the entire suit property. The second
appeal arising out of the said dispute between Prayagbai and
Godubai (1190 of 1964) came to be filed in this Court by Godubai. By
an order and judgment dated 12th July, 1972 passed by this Court in
the said Second Appeal No.1190 of 1964, the said said second
appeal came to be disposed of by the said judgment. In the said
judgment, this Court held that the testator wanted to give ½ share
each to his two wives through their life time in the house property and
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after the death of of the first wife i.e. Parvatibai's half share was to
devolve to the daughter Prayagbai for life. This Court awarded a joint
possession of the suit house to Prayagbai along with Godubai. It is
the case of the plaintiffs that after the said order came to be passed
by this Court, the said Prayagbai was in possession of part of the suit
property and Godubai was in possession of other part of the suit
property.
8. On 12th March, 1982, Prayagbai handed over possession
of part of the property, which was in her possession to Babar under
the purported agreement. In the year 1986, the said Ganesh, an
adopted son of the said Shankar Daji Tisgaonkar filed a suit against
Babar for possession on the ground that Prayagbai had only life
interest in the suit property and she could not have transferred any
part of the suit property in her possession to Babar.
9. On 5th October, 1987, the said adopted son of the said
Shankar Daji Tisgaonkar i.e. Ganesh expired. On 18th April, 1988,
Godubai allegedly executed a Will in favour of the original defendant
i.e. the present appellant, who had allegedly entered the suit
property as a Caretaker of the said Godubai. On 21st April, 1991, the
said Godubai expired. It is the case of the plaintiffs that the original
defendant continued in possession of part of the suit property which
was in possession of Godubai. In the year 1992, the name of the
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original defendant was entered as a holder of the suit property in the
revenue record.
10. Some time in the year 1994, the original plaintiffs filed a
suit (Special Civil Suit No.113 of 1994) before the learned Civil
Judge, Senior Division, Pune against the original defendant, seeking
possession of the suit property from the original defendant, which
was originally in possession of Godubai due to life interest created in
her favour under the Will executed by Shankar. The original plaintiffs
however, gave description of the entire building in the plaint instead
of part of the premises, which was in possession of Godubai and
thereafter the original defendant and applied for relief in respect of
entire property. On 24th October, 1999, Prayagbai expired.
11. On 20th November, 2006, the learned Civil Judge, Senior
Division, Pune, dismissed the said Special Civil Suit No.113 of 1994
filed by the original plaintiffs on the ground of non-joinder of
Prayagbai as necessary party to the suit though rendered the findings
on all issues in favour of the original plaintiffs, including on the validity
of Will of the said Shankar Daji Tisgaonkar and life interest of
Godubai, Parvatibai and Prayagbai in the half portion of the suit
property.
12. Some time in the year 2007, the original plaintiffs filed an
Appeal (Civil Appeal No.102 of 2007) before the learned District
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Judge. No cross-objection came to be filed by the original defendant
in the said Civil Appeal No.102 of 2007.
13. On 9th January, 2013, the learned District Judge, Pune
allowed the said Appeal (102 of 2007) filed by the original plaintiffs
and set aside the impugned judgment and decree dated 20 th
November, 2006, passed by the learned Civil Judge, Senior Division,
Pune and partly decreed the said Special Civil Suit (113 of 1994).
The first appellate Court also directed the original defendant to deliver
possession of the property in his possession to the plaintiffs before
15th April, 2013 and granted various other reliefs.
14. Being aggrieved by the said judgment and decree dated
9th January, 2013, passed by the leaned District Judge, Pune, the
original defendant has filed this second appeal under section 100 of
the Code of Civil Procedure, 1908.
15. Mr.Gupte, learned counsel appearing for the original
defendant invited my attention to the plaint in Regular Civil Suit
No.234 of 1984, which was filed by Ganesh, an adopted son of the
said Shankar Daji Tisgaonkar against Prayagbai, Siddheshwar
Babar and Smt.Godubai Shankar Tisgaonkar for a declaration that
Prayagbai and Godubai had only life interest in the said suit property
described therein and that Prayagbai had no right to sell or dispose of
the said property or any part thereof and also applied for a
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declaration that the Sale Deed deed dated 13 th March, 1981 entered
into between Prayagbai in favour of the defendant no.2 i.e.
Siddheshwar Babar in respect of ½ share in the suit property is illegal
and void and not binding on the plaintiffs. He submits that though
such a declaration was sought also against Smt.Godubai, the said
Ganesh admittedly withdrew the suit insofar as Godubai is
concerned. He submits that since the said Ganesh withdrew the suit
against Godubai, the said Ganesh could not have contended
subsequently that the interest of Godubai in half of the suit property
was limited to the extent of life interest and no other right, title or
interest of any nature whatsoever was created in her favour under the
said Will of the said Shankar Daji Tisgaonkar.
16. Learned counsel appearing for the original defendant also
invited my attention to few paragraphs of the judgment of this Court
dated 12th July, 1972 in Second Appeal No.1190 of 1964 filed by
Prayagbai and Godubai and would submit that this Court has held
that the issue as to whether Godubai had life interest or not in the
Will of said Shankar Daji Tisgaonkar is vague. He submits that the
said judgment of this Court thus would not assist the case of the
original plaintiffs insofar as their contention that the said Godubai had
only life interest in half of the suit property and did not have any other
interest therein is concerned.
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17. Learned counsel for the original defendant invited my
attention to the prayers in the suit filed by the original plaintiffs and
would submit that admittedly there was no prayer for partition of the
suit property. He submits that the defendant is in possession of the
entire property. He submits that the defendant has also parted with
possession in respect of part of the property in favour of Siddheshwar
Babar. He submits that the suit bearing No.2341 of 1986, which was
filed by Ganesh against Prayagbai, Babar and Godubai ultimately is
decreed. The first appeal against the said judgment and decree is
pending.
18. It is submitted by the learned counsel that when the
original plaintiffs filed the suit against his client the said Prayagbai
was admittedly alive and she expired on 24th October, 1999 i.e. during
the pendency of the said suit. It is submitted that though the plaintiffs
were fully aware of the transfer of the half share of the property by
Godubai in favour of his client, the plaintiffs however, did not implead
Godubai to the suit. The suit was rightly dismissed by the learned
trial Judge on the ground of non-joinder of necessary party.
19. Learned counsel appearing for the defendant submits that
both the wives of said Shankar Daji Tisgaonkar were admittedly in
possession of their respective half share in the suit property till their
death. He submits that after the death of Parvatibai, the first wife of
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said Shankar Daji Tisgaonkar, Godubai, the second wife of the the
said deceased Shankar Daji Tisgaonkar became entitled to full
fledged rights in the suit property even as a legal heir and
representative of the said deceased Shankar Daji Tisgaonkar. He
submits that no relief of possession could be claimed by the plaintiffs
against Godubai.
20. Learned counsel for the defendant invited my attention to
paragraph 33 of the impugned judgment and decree passed by the
first appellate Court that it had come on record in the evidence of the
plaintiffs as well as the defendant that Prayagbai had sold her half
share to Babar and the plaintiffs had filed a suit (Regular Civil Suit
No.234 of 1996) against Babar impleading the said Godubai as a
party in the said suit. It is held that Babar had purchased half
undivided share and in his suit, his right will have to be decided.
21. Mr.Deo, learned counsel appearing for the original
plaintiffs invited my attention to the findings recorded by the learned
trial Judge in the judgment and decree dated 20th November, 2006
and would submit that though the learned trial Judge rendered the
findings on all the issues in favour of the plaintiffs, the suit was
dismissed erroneously on the ground of non-joinder of necessary
party. He submits that both the wives of the said Shankar Daji
Tisgaonkar and the daughter of Parvatibai had merely life interest in
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the suit property to the extent of half of the property bequeathed
under the Will each. He submits that after the demise of two wifes of
the said Shankar Daji Tisgaonkar and Prayagbai, the daughter of
Parvatibai, entire property was inherited buy Ganesh, he being
adopted son of the said Shankar Daji Tisgaonkar under the said Will.
He submits that since there was specific bequest in favour of two
wifes of th said Shankar Daji Tisgaonkar and in favour of Prayagbai
for lime interest, the said two wifes and the daughter of said Shankar
Daji Tisgaonkar could not have claimed any other share or interest in
the suit property of the said deceased Shankar Daji Tisgaonkar.
22. It is submitted by the learned counsel for the original
plaintiffs that the issues whether the said two wives of the said
Shankar Daji Tisgaonkar and the daughter of Parvatibai viz.
Prayagbai had life interest in the suit property or not has been
already concluded finally in Second Appeal No.1190 of 1964 decided
by this Court in the proceedings filed by Prayagbai against Godubai
upon interpretation of the Will executed by the deceased Shankar
Daji Tisgaonkar. He submits that it is categorically held by this Court
in the said second appeal that each of wife of the said Shankar Daji
Tisgaonkar had life interest in half share of the suit property and that
after the demise of Parvatibai, her daughter Prayagbai will have life
interest in he half portion of the suit property. He submits that the
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defendant, who claims to be the purchaser of the portion of the suit
property cannot be allowed to urge any submissions contrary to the
judgment of this Court in second Appeal No.1190 of 1964.
23. Insofar as the submission of the learned counsel for the
defendant that the plaintiffs having withdrawn the suit i.e. Regular
Civil Suit No.1206 of 1984 filed by the plaintiffs against Godubai and
others insofar as Godubai is concerned, for a declaration that the two
wives of the said Shankar Daji Tisgaonkar had life interest in the suit
property and thus the plaintiffs cannot be allowed to urge that two
wives and daughter Prayagbai had life interest in the property is
concerned, it is submitted by the learned counsel for the plaintiffs that
since this Court has already rendered a finding upon the
interpretation of a Will of the deceased Shankar Daji Tisgaonkar, two
wives had life interest to the extent of half share each in the suit
property and after the demise of Parvatibai, her life interest would go
to Prayagbai, the plaintiffs were advised to delete the name of
Godubai from the cause title of Regular Civil Suit No.1206 of 1984.
He submits that Godubai, who was a party to Second Appeal (1190
of 1964), the said order and judgment passed by this Court was
binding on Godubai and all persons claiming through her. He submits
that the alleged Will of Godubai propounded by the defendant was
not proved and was thus rightly discarded. He submits that since
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Godubai expired in the year 1991, the plaintiffs rightly filed a suit in
the year 1994 in view of the alleged third party rights fraudulently
created by the said Godubai and Prayagbai.
24. It is submitted by the learned counsel for the plaintiffs that
the plaintiffs had prayed for recovery of possession of the entire
property, the first appellate Court however has moulded the relief and
has directed the defendant to deliver the possession of only 4 Khans
premises and to deliver symbolic possession to the share of Godubai
to the extent of half share in the suit premises. He submits that there
is thus no substance in the submissions made by the learned counsel
for the defendant that since the plaintiffs had prayed for possession of
the entire property, no decree for possession could have been
passed by the first appellate Court even in respect of part of the
property. He submits that if anybody else is illegally put in possession
by the defendant against whom a decree for possession is passed by
the first appellate Court, the plaintiffs would file appropriate
proceedings for removal of obstructionist.
25. There is no dispute that the suit property originally
belonged to Shankar Daji Tisgaonkar, who had executed his last Will
dated 13th October, 1935. The said Shankar Daji Tisgaonkar had two
wives viz. Parvatibai and Godubai. Parvatibai was his first wife,
whereas Godubai was his second wife. There was no issue out of the
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said wedlock between Shankar Daji Tisgaonkar and Godubai. The
daughter was born out of the wedlock between Shankar Daji
Tisgaonkar and Parvatibai viz. Prayagbai.
REASONS AND CONCLUSIONS
26. There is no dispute that the suit was filed by Prayagbai,
step daughter of Godubai against Godubai for a declaration,
possession and mesne-profits. The learned trial Judge had passed a
decree in the said suit filed by Prayagbai. The dispute ultimately went
upto this Court and was the subject matter of Second Appeal
No.1190 of 1964, which was filed by the said Godubai. A perusal of
the order and judgment dated 12th July, 1972 passed by this Court in
the said second appeal (1190 of 1964) filed by Godubai indicates that
Prayagbai claimed her right, title and interest in the suit property
under the said Will dated 13th October, 1935 executed by the said
Shankar Daji Tisgaonkar and filed a suit for possession of the whole
house from Godubai. The learned trial Judge in the said suit held
that Prayagbai had no possession within 12 years and Godubai had
become the owner by adverse possession. The learned trial Judge
however, recorded the finding on the question of title in favour of
Prayagbai and against Godubai. Prayagbai thereafter preferred an
appeal. The first appellate Court allowed the said appeal filed by
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Prayagbai and remanded the suit for a fresh trial. Upon remand the
trial court rendered a finding that Prayagbai had proved her title but
had failed to prove her possession within 12 years before the date of
the suit. The first appellate Court came to a conclusion that the
defendant therein i.e. Godubai was not in adverse possession of the
suit house and allowed the said claim and passed a decree in favour
of Prayagbai and against Godubai for possession and mesne-profits.
27. Being aggrieved by the said judgment and decree passed
by the first appellate Court, Godubai filed second appeal before this
Court (1990 of 1964). This Court considered the Will executed by
Shankar Daji Tisgaonkar while considering the claims made by
Prayagbai. This Court held that the said Will executed by Shankar
Daji Tisgaonkar provided that after his death, his first wife Parvatibai
will assume the management and pay certain amount by way of
maintenance to the second wife of Shankar Daji Tisgaonkar i.e.
Godubai. This Court held that Shankar Daji Tisgaonkar wanted to
give ½ share to his two wives during life time and had created life
interest therein.
28. In my view, the said judgment of this Court delivered in
Second Appeal No.1190 of 1964 on 12th July, 1972, which was
between Prayagbai and Godubai in which the Will of the said
Shankar Daji Tisgaonkar was interpreted by this Court and it has
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been held that the two wifes of said Shankar Daji Tisgaonkar had life
interest in the suit house is binding on Prayagbai and Godubai and
the persons claiming through them. A perusal of the order passed by
the first appellate Court indicates that the first appellate Court has
specifically dealt with this issue at great length in the impugned
judgment and decree and after adverting to the judgment of this Court
dated 12th July, 1972 in Second Appeal No.1190 of 1964 filed by
Prayagbai has held that this Court has already specifically held that
two wives of the said Shankar Daji Tisgaonkar had acquired half
share in the suit property through their life time and it was no where
held that they had acquired full title as the owners thereof. This Court
had granted a decree of joint possession of the suit property to
Prayagbai along with Godubai. The first appellate Court accordingly
rendered a finding that Ganesh being the legal heir of said Shankar
Daji Tisgaonkar had acquired right, title and interest over the suit
property after the death of Godubai and became entitled to
possession of the property held by Godubai in view of her demise
and upon such demise, her minority share in the property came to an
end.
29. Insofar as possession of the defendant is concerned, it is
held by the first appellate Court that in the cross-examination of the
defendant, he deposed that he was in possession of 4 Khan premises
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on the second floor and remaining portion of the second and third
floor was entirely in possession of Babar and that there was one
tenant on the ground floor. The defendant was occupying 4 Khans
premises in his possession and was also claiming right, title and
interest to the extent of half share of Godubai. The first appellate
Court has held that the plaintiffs had proved the fact that after the
death of Godubai, the Ganesh had inherited the suit property on the
basis of the Will of said Shankar Daji Tisgaonkar and the plaintiffs
being his legal heirs have right, title and interest in the suit property.
30. I am thus not inclined to accept the submission of the
learned counsel for the defendant that this Court in the judgment
dated 12th July, 1972 in Second Appeal No.1190 of 1964 has not
declared that Parvatibai and Godubai had merely life interest in the
suit house. There is no substance in the submission of the learned
counsel for the defendant that even if Godubai had life interest in the
suit property, after the demise of Godubai, the persons claiming
through Godubai would claim right, title and interest in the suit
property to the extent of her half share.
31. In my view, since Godubai herself had life interest in the
suit property, after her demise, no party could claim any right, title
and interest even in respect of half of the suit property through
Godubai. A party who had life interest in the property cannot create
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any right, title or interest of any nature and more particularly transfer
of the alleged ownership in favour of any third party. In my view, the
judgment of this Court dated 12th July, 1972 passed in the Second
Appeal No.1190 of 1964 is binding on the parties, including the
defendant, who is claiming through Godubai, who was admittedly the
appellant in the said Second Appeal No.1190 of 1964. The said
judgment which squarely applies to the facts of this case is binding on
this Court.
32.
A perusal of the order passed by the learned trial Judge
indicates that though the learned trial Judge rendered all findings,
including adoption of Ganesh by Shankar Daji Tisgaonkar, existence
and validity of the Will dated 13 th October, 1935 executed by the
deceased Shankar Daji Tisgaonkar and rejected the claim of adverse
possession made by the defendant, the learned trial Judge
erroneously dismissed the suit filed by the original plaintiffs on the
ground of non-joinder of necessary party. The suit was filed by the
plaintiffs against the defendant, who claimed to be in possession of
the part of the property. The Will executed by the said Shankar Daji
Tisgaonkar was already interpreted by this Court in Second Appeal
No.1190 of 1964. The Will was also interpreted by the learned trial
Judge in favour of the plaintiffs. Admittedly there was no cross-
objection filed by the defendant challenging the findings recored by
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the learned trial Judge in favour of the plaintiffs.
33. A perusal of the impugned order passed by the first
appellate Court indicates that the first appellate Court framed six
points for determination and independently considered the oral and
documentary evidence led by both the parties. The first appellate
Court held that the plaintiffs had proved the adoption of Ganesh by
the said Shankar Daji Tisgaonkar and also proved that the plaintiffs
had acquired title over the suit property through their father as per the
Will of Shankar Daji Tisgaonkar. The defendant failed to prove that
the deceased Godubai had became full owner of the suit property
and had alleged to have executed a Will dated 18 th April, 1988 in
favour of the defendant.
34. Insofar as the submission of the learned counsel for the
defendant that though the plaintiffs had applied for a declaration in
the Regular Civil Suit No.234 of 1984 that Prayagbai and Godubai
had only life interest in the suit property and had admittedly
withdrawn the said suit insofar as Godubai is concerned and thus
cannot be allowed to urge that Godubai had life interest in the suit
property is concerned, in my view, since this Court had already
adjudicated upon the said issue in a separate suit filed by Prayagbai
against Godubai which culminated in the order passed by this court in
Second Appeal No.1190 of 1964, even if the plaintiffs had withdrawn
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the suit (234 of 1984) against Godubai, the rights of the plaintiffs in
the suit were not affected. The said issue was not required to be
determined once again in view of the said issue already having
attained finality in the Second Appeal No.1190 of 1964.
35. Insofar as the submission of the learned counsel for the
defendant that the plaintiffs could not have applied for recovery of
possession of the entire property without impleading the other parties,
who were in possession of the suit property and thus the suit was
bad for non-joinder of necessary parties is concerned, in my view,
even if the plaintiffs had prayed for larger reliefs, the Court has ample
power to mould the reliefs and grant smaller relief. Since the
defendant had admittedly claimed to be in possession of only 4
Khans premises situated on the second floor of the suit property, the
first appellate Court was right in passing a decree of possession
against the defendant to the extent of the suit property illegally
possessed by the defendant. In my view, since Godubai did not have
any interest more than life interest in the half share of the suit
property which life interest came to an end upon her demise, the first
appellate Court thus rightly held that the defendant had no right, title
of interest of any nature whatsoever in the suit property in his
possession and has accordingly directed to hand over possession to
the plaintiffs.
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36. In these facts and circumstances, the plaintiffs were not
required to implead any other parties to the suit. Godubai had no
legal heir. The defendant was not claiming through Prayagbai and
thus impleadment of Prayagbai was thus not necessary. In any event,
Prayagbai expired during the pendency of the suit filed by the
plaintiffs. The life interest of Prayagbai in half of the suit property
claiming through Parvatibai also came to an end upon her demise. I
therefore, do not find any substance in this submission of the learned
counsel for the defendant.
37. In my view the finding of the learned trial Judge that the
suit was bad for non-joinder of necessary parties is totally perverse
and thus has been rightly set aside by the first appellate Court. The
finding recorded by the learned trial Judge on other issues in favour
of the plaintiffs not having been challenged by the defendant by filing
cross-objection attained finality and thus those findings cannot be
challenged by the defendant in this second appeal.
38. In my view, the first appellate Court has considered the
oral and documentary evidence in right perspective and has rightly
followed the judgment of this Court delivered on 12 th July, 1972 in the
Second Appeal No.1190 of 1964 and the findings being not perverse,
cannot be interfered with by this Court in this second appeal filed
under section 100 of the Code of Civil Procedure, 1908.
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39. In my view, the appeal is totally devoid of merits. No
substantial question of law arises in this second appeal.
40. I therefore, pass the following order :-
a). Second Appeal No.197 of 2013 is dismissed.
b). In view of dismissal of the second appeal, Civil Application
No.526 of 2013 does not survive and is accordingly dismissed.
c). No order as to costs.
ig (R.D. DHANUKA, J.)
At this stage, learned counsel for the appellant seeks
continuation of the ad-interim order passed by this Court on 12th
September, 2013. Mr.Deo, learned counsel appearing for the
respondent nos.1 to 3 continues the statement made before this
Court on 12th September, 2013 for a period of eight weeks from
today. The statement is accepted.
(R.D. DHANUKA, J.)
