Sugrabi Ibrahim Shaikh Died ... vs Rafiq Abbas Shaikh Died Through ...
2016 Latest Caselaw 6091 Bom

                                                                         39_WP31816.odt


             
                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                               
                            BENCH AT AURANGABAD

                              WRIT PETITION NO. 318 OF 2016




                                                       
    Sugrabi Ibrahim Shaikh
    Since deceased Through her
    Legal Heir and Representative




                                                      
    Abdul Gaffar Ibrahim Shaikh
    Age: Major, Occu. Agri. & Business,
    R/o Madina Nagar, Tq. Sangamner,
    Dist. Ahmednagar.                                         ..PETITIONER




                                                 
                   VERSUS
    1.      Rafiq Abbas Shaikh
                                    
             Since deceased through his
             Legal Heirs and Representatives
                                   
    1-A.)  Arif Rafiq Shaikh
              Age: 29 years, Occu.: Business,
              R/o Kasar Galli, Akole,
         

              Tq. Akole, Dist. Ahmednagar.
      



    1-B)  Asif Rafiq Shaikh
             Age: 27 years, Occu.: Business,
             R/o Kasar Galli, Akole,
             Tq. Akole, Dist. Ahmednagar.





     
    1-C)  Motin Rafiq Shaikh
             Age: 23 years, Occu.: Business,
             R/o Kasar Galli, Akole,
             Tq. Akole, Dist. Ahmednagar.





    2)     Shamim Abbasbhai Shaikh
            Age: 62 years, Occu.: Labour,
            R/o Akole, Tq. Akole,
            Dist. Ahmednagar.

    3)     Shankar Jayaram Kolapkar
            Age: 82 years,  Occu.: Business,

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                                                                                  39_WP31816.odt


           R/o Akole, Tq. Akole,
           Dist. Ahmednagar.                                          ..RESPONDENTS




                                                                                       
                                         ....
    Mr. S.S. Dixit, Advocate for petitioner.




                                                               
    Mr. A.N. Ansari, Advocate for Respondent No.1-B.
    Mr. A.S. Bajaj, Advocate for Respondent No.3.
                                         ....




                                                              
                                           CORAM :  T.V. NALAWADE, J.

DATED : 17th OCTOBER, 2016

ORAL JUDGMENT :

1.

Rule. Rule made returnable forthwith. Heard both sides by

consent for final disposal.

2. The petition is filed to challenge the order made on Exhibit 97

in Regular Civil Suit No. 196 of 1998 pending before the Court of Civil

Judge, Junior Division, Akole. Heard both sides.

3. The suit is filed by the present petitioner for relief of partition

of ancestral property against her two brothers, the purchaser, the person

in whose favour agreement of sale is made by brothers of the said

property. It appears that in the year 1994, Respondent No.3 had filed suit

for relief of specific performance of contract of sale against two brothers

and present petitioner. The suit was dismissed and first appeal was also

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39_WP31816.odt

dismissed. Today, copy of the order made by this Court in Second Appeal

No. 125 of 2012 is produced to show that appeal filed by Respondent

No.3 is admitted. In view of the circumstances that the appeal is

admitted, it appears that this Court in Second Appeal No. 125 of 2012 has

stayed the execution of the decree given in favour of the brothers of the

present petitioner in respect of counter claim of possession.

4. This Court has perused the plaint. It is contended by the

plaintiff of specific performance suit that the agreement was executed in

his favour by brothers of petitioner. Vague contention is made that all the

defendants had agreed to sale the property, but specific contention is that

brothers had executed the agreement of sale. When parties are Muslims,

even if best possible case is accepted in favour of Respondent No.3, it can

be said that the present petitioner will be entitled to get the decree in

respect of her share in the suit property and she will be entitled to get

equitable partition in respect of property. If the Respondent No.3

succeeds in his suit even against the petitioner, the decree of partition

cannot be executed. But the subject matters are different. In view of

these circumstances, the Trial Court ought not to have stayed the suit

under the provision of Section 10 of the Code of Civil Procedure.

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39_WP31816.odt

5. Learned Counsel for Respondent No.3 argued on one

circumstance. It appears that when the first appeal was filed against the

decision given by the Trial Court in the specific performance suit,

application under Section 10 was filed and that application was allowed

by the Trial Court. The first appeal itself was dismissed and so it can be

said that after dismissal of the first appeal, the order did not remain in

existence.

6.

This Court holds that such order of Trial Court cannot sustain

in law. The suit was filed in the year 1998 and surprisingly the suit has

not made any progress. It appears that pendency of the suit filed for

specific performance of contract was taken as circumstance and due to

that the progress was not made in partition suit. In the result, petitions is

allowed. Order made by the Trial Court is hereby set aside. The

application filed for stay of suit is rejected. The partition suit is to go on

and it is to be decided within four months from the date of receipt of this

order. Rule is made absolute in the above terms. Observations made by

this Court are for the purpose of present proceeding only.

( T.V. NALAWADE, J. ) SSD

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