Bombay High Court
Gopinath Sangram Hingmire And Ors vs Ramesh Madhavrao Butte Died Lrs ... on 22 September, 2016
Bench: S.P. Deshmukh
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drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.45 OF 2016
Gopinath Sangram Hingmire and Others APPELLANTS
VERSUS
Ramesh Madhavrao Butte (Died) LR and Another RESPONDENTS
.......
Mr. Ram S. Shinde, Advocate for the appellants
Mrs. S. G. Chincholkar, h/f Mr. G. N. Chincholkar, for R-1/1/1
Mr. V. C. Solshe, Advocate for respondent No.2
ig .......
[CORAM : SUNIL P. DESHMUKH, J.]
DATE : 22nd SEPTEMBER, 2016
ORDER :
1. Heard learned advocates for the parties.
2. After hearing learned advocates, the position emerges that
the original plaintiff, who initiated proceedings for possession
under inheritance from original "Kabala" holder, had died during
pendency of the suit. After his death, his mother had been
brought on record, however, subsequently she also died. Present
respondent No.1/1/1 Rajanibai claims the property under a will
executed by deceased Godavaribai, mother of original plaintiff.
The appellate court while hearing Regular Civil Appeal No.28 of
2009 had framed a specific point as to whether original plaintiff
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i.e. present respondent No.1/1/1 Rajanibai is entitled to
ownership and possession of the property, holding the same in
the negative and yet the appeal came to be dismissed.
3. It will have to be kept at the back of the mind that
initiation of entire proceedings had been by deceased Ramesh
claiming declaration and possession of the property claiming
dispossession at the hands of present appellants - defendants
No.1 to 3 and respondent No.2 - original defendant No.4.
4. In the circumstances, the second appeal is admitted on
following question of law, which may substantially arise for
consideration -
"Whether suit proceedings could continue in fact and in
law, for a declaration as sought by original plaintiff could
be continued at the instance of present respondent
No.1/1/1, who has substituted the original plaintiff, when
the appellate court has found that respondent No.1/1/1
would not be able to stake claim as owner in absence of
relevant pleadings being not amended?"
5. Mrs. Chincholkar, learned advocate waives notice for
respondent No.1/1/1 and Mr. Solshe waives for respondent No.2.
6. Learned advocate for respondent No.1/1/1 urges for
expeditious disposal of the second appeal. The second appeal is
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accordingly expedited. Interim relief as already granted to
continue to operate till disposal of the second appeal.
7. Amount, if any, deposited pursuant to orders of this court
be invested in fixed deposit earning highest interest in a
nationalized bank.
8. Print dispensed with. Hopefully, paper-book would be filed
as early as possible, preferably within a period of twenty weeks
from today.
[SUNIL P. DESHMUKH, J.]
drp/sa45-16
