Bombay High Court
Kusum Bhalchandra Panchikar vs Dattatrya N Kale D/H Asha D Kale And ... on 20 April, 2017
Bench: N.M. Jamdar
Dusane 1/5 sa619.1994.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELL ATE JURISDICTION
SECOND APPEAL NO.619 OF 1994
WITH
CIVIL APPLICATION NO.6404 OF 1994
WITH
CIVIL APPLICATION NO.227 OF 2017
Mrs. Kusum Bhalchandra Panchikar
About 53 years, Occ.: Household,
Residing at Sativa Apartment,
Ram Nagar, Dombivli (East). .... Appellant
Vs.
Mr. Dattatray Narayan Kale
Since deceased by his LRs
1 Mrs. Asha Dattatraya Kale
2 Mr. Sanjay Dattatraya Kale
3 Vijaya Dattatraya Kale
4 Prashant Dattatraya Kale
5 Smita Dattatraya Kale
6 Mr. Parag Dattatraya Kale
7 Rashmi Dattatraya Kale
8 Trupti Dattatraya Kale
Nos. 1, 2 & 4 to 8 Residing at
Ushakiran Building, Opp. Badlapur Railway
Booking Office, Station Pada, Kulgaon,
Near Badlapur Railway Station,
Taluka Ulhasnagar, Dist. Thane
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Dusane 2/5 sa619.1994.doc
No. 3 Residing at Katrap Road,
Wankhade Building, Katrap,
Post Kulgaon, Tal. Ulhasnagar,
Dist. Thane
(Vide Court's order dated 28.2.97,
Amendment carried out in C.A.
No.2911/94 in S.A. No. 619/94) .... Respondents
(Original Plaintiffs)
Ms. Sharmila Deshmukh for the Appellant and Applicant in CA
No.6404 of 1994.
Mr. Sagar Joshi i/by S.M. Oak for Respondent Nos. 1 to 4 and for
Applicant in CA No.227 of 2017.
Coram : N.M. Jamdar, J.
Date : 20 April 2017
ORAL JUDGMENT :
This appeal is filed by the original defendant in the Regular
Civil Suit No. 43 of 1984 filed by the Respondent-Plaintiff.
2 The Respondent filed a Regular Civil Suit No. 43 of 1984
seeking specific performance of the agreement dated 23 April 1982,
entered into between the parties in respect of sale of the suit property.
The learned Civil Judge, by the judgment and order dated 31 July 1991
partly decreed the suit. The learned Civil Judge granted the claim of
the Respondent in terms of money, however, refused specific
Dusane 3/5 sa619.1994.doc
performance. The Appeal bearing No. 259 of 1991 was filed by the
Respondent-Plaintiff in the District Court, Thane. The learned
District Judge, by judgment and order 15 March 1994 allowed the
appeal and directed the Appellant to execute a sale-deed in favour of
the Respondent.
3 The present Second Appeal was thereafter filed and it was
admitted on 1 December 1994. Civil Application No.1940 of 1996
was filed by the Appellant seeking stay of the impugned judgment and
order passed by the learned District Judge. In the Civil Application
following order was passed on 4 July 1996.
"Rule returnable forthwith.
Mr. A.S. Oka waives service.
The Second Appeal is arising from the
judgment and decree dated 15.09.1994 has already
been admitted and for the reasons stated in the
application, I am satisfied that prayer in terms of
clause (a) deserved to be granted.
Accordingly the Respondent is restrained from
creating any third party interest of whatever nature in
respect of suit property during the pendency of the
appeal.
Civil Application stands disposed of.
4 The learned counsel for the Appellant sought to urge
various contentions on merits, however, the learned counsel for the
Dusane 4/5 sa619.1994.doc
Respondent pointed out that the Civil Application No. 227 of 2017 is
filed in this Second Appeal seeking to dismiss the Second Appeal on
the ground that the Appellant has violated the order passed on 4 July
1996 in Civil Application No. 1940 of 1996. The Respondents have
placed on record that the Appellant has transferred the rights in the suit
property on 22 March 2013. Documentation to that effect annexed,
and also a development agreement. Reply affidavit has been filed to
this Civil Application. Perusal of the reply shows that factum of selling
the property has not been denied. The reason given is of the ill-health
and ignorance of the Appellant. In the affidavit itself she has stated
that she has acted on the behest of her family members.
5 The action of the Appellant in selling the property is in
clear breach of the order dated 4 July 1996, which mandate the
Appellant not to create third party rights of whatsoever nature in
respect of the suit property. There is absolutely no reference to this
order in the sale-deed. It cannot be believed that the Appellant and her
family members were not aware of the litigation. The litigation
regarding suit property is pending since the year 1984. The District
Court had passed an order against the Appellant and thereafter the
Second Appeal is filed. The actions of the Appellant are brazen,
including of those who have sought to benefit from these actions.
Dusane 5/5 sa619.1994.doc
6 The Appellant is in clear breach of the order of this court.
Further since the Appellant has admittedly divested herself of the title
of the suit property, there is no need to hear the appeal further at the
behest of the Appellant. Till date no intervention application is also
filed. The sale-deed executed by the Appellant in favour of the third
parties is in clear violation of the order of the Court and no rights will
flow to the parties therefrom. The Civil Application No. 227 of 2017
is filed in January 2017.
7 Thus the challenge to the impugned Judgment at the
behest of the Appellant, need not be heard. Secondly, creation of any
third party rights by the Appellant in brazen contravention of the
orders of the Court will confer no title and no rights will flow
therefrom. The appeal is pending since 1994, no intervention
application is filed to demonstrate any right in the Suit Property or any
defence. The Second Appeal is accordingly dismissed.
8 In view of dismissal of the Second Appeal, the Civil
Application does not survive, the same is accordingly disposed of.
( N.M. Jamdar, J.)
