Bombay High Court
Rajendra Motilal Munot And ... vs Sou. Kusum W/O Gajanan Deolalikar ... on 19 December, 2017
Bench: K.L. Wadane
AO68-15&19-16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPEAL FROM ORDER NO. 68 OF 2015
WITH CA/9476/2015 IN AO/68/2015
1. Sou.Kusum w/o Gajanan Deolalikar
2 Smt. Jyoti d/o Gajanan
Deolalikar
3 Shrikant s/o Gajanan Deolalikar Appellants
(Original
All- R/o 418/19, Somvar Peth, Plaintiff)
Pune-1
VERSUS
1 Gajanan Murlidhar Deolalikar
(Died, through LRs. i.e.
Appellant Nos. 1 to 3 and
Respondent Nos. 13 & 14)
2 Ravishankar Murlidhar Deolalikar
3 Deepak Gajanan Deolaikar
Died, having no heirs.
4 Surendra Sitaram Varvadkar
5 Madhu Anna Jangwali
Died-Through LRS.
5-A) Sau. Lata w/o Dnyaneshwar
Misal
5-B) Sau Asha w/o Vijay Sathe
5-C) Mangal Laxman Bedre
(Deceased, through LRs.
5-C-1) Rahul s/o Laxman Bedre
R/o House No.189/1861/1862
Zendigate, Gawaliwada, CTS
No.1899, Talmicha Wada,
Ahmednagar,
6 Shaikh Saleemabi Musa Kureshi
7 Shaikh Iliyas Babubhai Kureshi
8 Shaikh Maiambi Khalid Kureshi
9 Shaikh Shakilabai Kadir Kureshi
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10 Shaikh Rahim Munnisa Isak
Kureshi
11 Rajendra Motilal Munot
12 Sau Shobha Rajendra Munot
13 Sunil Gajanan Deolalikar
14 Jagdsh Gajanan Deolalikar
15 Vastalabai Pancharinath Mahale
Deceased, through her Legal
Heirs.
15-a) Karuna Rajendra Udawant
15-b) Kalpana Kalyan Misal
15-c) Meena Shantaram Pawatekar
16 Suresh Sakharam Deolalikar
17 Sindhu d/o Murlidhar Deolalikar
Deceased, through her Legal
heirs.
17-a) Shobha Suresh Mahale
17-b) Sanjay Mohan Bhadkwan
17-c) Ajay Mohan Bhadkwan
17-d) Dhananjay Mohan Bhadakwan
17-e) Bandu @ Vijay @ Trijay s/o
Mohan Bhadakwan
18 Sulochana w/o Govind Burhade
(Deleted as per order dated
21.07.2017)
19 Ratan w/o Surendra Warvarkar
20 Lalita w/o Ashok Nagre
21 Anand Omprakash Khandelwal
22 The Chairman of Rajiv gandhi
Nagri Sah. Patsanstha Ltd.,
Bhistbaug Naka, Pipe line Road,
Ahmednagar,
23 The Chairman of Bhairavnath
Gramin Bigarsheti Sah. Pat
Sanstha Ltd., Kedgaon, Tq.
Nagar, Dist. Ahmednagar.
24 Tukaram Anna Gawale (Jangawali)
25 Ganesh Namdeo Gawali(Jangawali)
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26 Manoj Namdeo Gawali (Jangawali)
27 Santosh Mahadu Gawali .. Respondents
(Jangawali) Died, through his .
legal heirs
27-1)Smt. Rani Santosh Gawali,
27-2)Vishal Santosh Gawali
27-3)Kum. Gavri Santosh Gawali
Mr Kishor C. Sant, Advocate for the appellants.
Mr Prasanna Kutti, Advocate for respondent No.1
Mr Anil S.Bajaj, Advocate for respondent Nos.11 & 12
Mr. Ankush Gade h/for Mr. S. J. Salunke, Advocate
for respondent Nos. 15-A to 15-C
WITH
APPEAL FROM ORDER NO.19 OF 2016
CA/4640/2016 IN AO/19/2016
1. Rajendra Motilal Munot
2 Sau. Shobha Rajendra Munot ... Appellants
R/o Khristgalli, Ahmednagar Original
respondents
11 and 12
VERSUS
1 Sou. Kusum w/o Gajanan
Deolalikar
2 Smt. Jyoti d/o Gajanan
Deolalikar
3 Shrikant s/o Gajanan Deolalikar
All- R/o 418/19, Somvar Peth,
Pune-1
4 Gajanan Murlidhar Deolalikar
5 Ravishankar Murlidhar
Deolalikar
6 Surendra Sitaram Varvadkar
7 Madhu Anna Jangwali
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8 Shaikh Saleemabi Musa Kureshi
9 Shaikh Ilyas Babubhai Kureshi
10 Shaikh Maiyambi Khalid Kureshi
11 Shaikh Shakilabi Kadir Kureshi
12 Shaikh Rahim Munnisa Isak
Kureshi
13 Sunil Gajanan Deolalikar
14 Jagdish Gajanan Deolalikar
15 Vastalabai Pandharinath Mahale
Deceased, through her Legal
Heirs.
15-a) Karuna Rajendra Udawant
15-b) Kalpana Kalyan Misal
15-c) Meena Shantaram Pawatekar
16 Suresh Sakharam Deolalikar
17 Sindhu d/o Murlidhar Deolalikar
Deceased, through her legal
heirs.
17-a) Shobha Suresh Mahale
17-b) Sanjay Mohan Bhadkwan
17-c) Ajay Mohan Bhadkwan
17-d) Dhananjay Mohan Bhadakwan
17-e) Bandu @ Vijay @ Trijay
s/o Mohan Bhadakwan
18 Sulochana w/o Govind Burhade
19 Ratan w/o Surendra Warvarkar
20 Lalita w/o Ashok Nagre
21 Anand Omprakash Khandelwal
22 The Chairman of Rajiv gandhi
Nagri Sah. Patsanstha Ltd.,
Bhistbaug Naka, Pipe line Road,
Ahmednagar,
23 The Chairman of Bhairavnath
Gramin Bigarsheti Sah. Pat
Sanstha Ltd., Kedgaon, Tq.
Nagar, Dist. Ahmednagar.
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24 Tukaram Anna Gawale (Jangawali)
25 Ganesh Namdeo Gawali(Jangawali)
26 Manoj Namdeo Gawali (Jangawali)
27 Santosh Mahadu Gawali ... Respondents
(Jangawali) Died, through his
legal heirs
27-1)Smt. Rani Santosh Gawali,
27-2)Vishal Santosh Gawali
27-3)Kum. Gavri Santosh Gawali
Mr. Anil S. Bajaj, Advocate for the appellants,
Mr. K. C. Sant, Advocate for Respondents 1 to 3
CORAM : K. L. WADANE, J.
RESERVED ON : 13.12.2017
PRONOUNCED ON : 19.12.2017
J U D G M E N T:
1. The above referred appeals are arising out of
the judgment and order dated 08.06.2015 passed by
the District Judge-4, Ahmednagar in Regular Civil
Appeal No. 188/2012, by which the judgment and
decree of dismissal Regular Civil Suit No. 41/2000,
dated 15.03.2003 is set aside and suit is remanded
to the trial court for its decision afresh, as per
the observations made in the order. (The parties
are referred to by their original status).
2. Being aggrieved with the impugned order,
original plaintiffs have preferred Appeal from Order
AO68-15&19-16.odt
No. 68/2015 contending that the learned District
Judge has remanded the suit only to the extent of
two properties i.e. CTS Nos. 1469 and 1470 excluding
the property bearing CTS No. 1899 and it is prayed
that the matter be remanded for its disposal
including property CTS No.1899.
3. Original defendant Nos. 12 and 13, purchaser
of the property CTS No. 1899 have presented the
Appeal from Order No.19/2016 only for clarification
that suit is remanded to the extent of two
properties i.e. CTS Nos. 1469 and 1470 only.
4. I have heard the arguments of Mr. Sant, the
learned counsel appearing for the appellants/
plaintiffs and Mr. Bajaj, the learned counsel
appearing for appellants/defendant Nos. 12 and 13.
5. On perusal of the record and upon hearing
both the sides, it appears that the learned trial
court has dismissed the suit for partition and
separate possession. The suit was filed by the
plaintiffs for partition and separate possession,
contending that the suit properties i.e. CTS Nos.
1469, 1469 and 1899 are ancestral properties of
AO68-15&19-16.odt
defendant Nos. 1 and 2, Gajanan Murlidhar Deolalikar
and Ravishankar Murlidhar Deolalikar respectively
and after death of Murlidhar, the plaintiffs are
entitled to have their shares in the suit
properties.
6. In the trial Court, on behalf of the
plaintiffs, Plaintiff No.1 Kusum Deolalikar deposed
at Exh.59, one witness Chandrakant Kulthe deposed
at Exh.62 and plaintiff No.3 Shrikant Deolalikar at
Exh.91. As against this, defendant No.1 Gajanan
Deolalikar deposed at Exh.67 and Defendant No.12
Rajendra deposed himself at Exh.77. Besides the
oral evidence, the parties have relied on the
documentary evidence on record.
7. After considering the evidence on record, the
learned trial court has held that the property at
CTS No. 1899 is self acquired property of defendant
Nos. 1 and 2 and rest of the properties i.e.
property Nos. 1469 and 1479 are the ancestral
properties of defendant Nos. 1 and 2. Further it is
observed by the trial court that the suit is bad
for non-joinder of necessary parties. Hence, the
suit was dismissed, against which, the plaintiffs
AO68-15&19-16.odt
have preferred Regular Civil Appeal before the
learned District Judge, Ahmednagar/First Appellate
Court. During the pendency of the Regular Civil
Appeal, other legal representatives i.e. daughters
of deceased Murlidhar were brought on record. In
view of the amendment in the Succession Act,
daughters are also entitled for share in the
properties left by the deceased Murlidhar. Hence,
the matter was remanded for re-determination/
calculation of shares after including of the female
members in the family.
8. The learned trial court has held that the
property Nos. 1469 and 1470 are the ancestral
properties of Defendant Nos.1 and 2 as they have
specifically admitted the same in their written
statement. Further, from the record, it appears
that the property CTS No. 1899 was sold by the
father of defendant Nos. 1 and 2 namely Murlidhar in
the year 1957 to one Shankar Dahale. Murlidhar died
in the year 1963. Subsequently, in the year, 1973,
defendant Nos. 1 and 2 have purchased the same
property from Shankar Dahale. Thus, from the
record, it appears that the learned trial court has
AO68-15&19-16.odt
observed that the property at CTS No. 1899 is self
acquired property of defendant Nos.1 and 2. Further,
there is no evidence on record that defendant Nos. 1
and 2 have purchased property CTS No.1899 from the
nucleus of the jointly family. In the Appeal, the
First Appellate Court also observed the same thing.
9. So, looking to the observations of the trial
court as well as the First Appellate Court, it
appears that the finding as regards self acquired
property of defendants Nos. 1 and 2 is concurrent
and no contrary evidence is adduced on record.
After addition of the female members i.e. daughters
of Murlidhar as party respondents, the matter was
remanded to the trial court only for re-
determination/calculation of shares of the
plaintiffs, defendant Nos.1 and 2 added daughters of
Murlidhar.
10. Mr. Sant, the learned counsel appearing for
the plaintiffs, during the course of argument, has
stated that the order remanding the suit only to
the extent of two properties is illegal since the
property i.e. CTS No. 1899 is also liable to be
AO68-15&19-16.odt
partitioned and therefore the matter may be remanded
inclusive of the property CTS No. 1899.
11. I do not agree with the submissions of Mr.
Sant, simply because the trial Court as well as
First appellate court, upon scrutiny of the evidence
on record, have held that CTS No. 1899 is self
acquired property of defendant Nos.1 and 2 and
therefore the same is not liable for partition.
Consequently, there is no substance in Appeal From
Order No. 68 of 2016.
and 13 (purchasers) i.e. Appeal from Order No.
19/2016, it appears that this appeal is presented
by them only to the extent of clarification that the
suit is remanded only for the purpose of
redetermination/calculation of shares in the two
properties i.e. CTS Nos. 1469 and 1470 and not in
respect of the self acquired property of defendant
Nos.1 and 2 i.e. CTS No.1899 from which defendant
Nos. 11 and 12 have purchased some part.
13. The First Appellate Court has held that two
properties i.e. properties at CTS Nos. 1469 and
AO68-15&19-16.odt
1470 are the joint family properties and one i.e.
CTS No.1899 is self acquired property of defendant
Nos. 1 and 2. However, in the operative part of the
impugned judgment and order, Clause 1-(a) reads as
follows:
"1-(a)The decree of dismissal of the suit dated
15.03.2003 is set aside and the suit is
remanded back to the Trial Court for decision
afresh as per the observations made above."
In the reasons recorded in the judgment and
order, the First Appellate Court has clearly
observed that CTS No. 1899 is a self acquired
property of defendants 1 and 2, however, it is
ordered by the First Appellate Court that the suit
is remanded to the learned Trial Court for its
decision afresh as per the observations made in the
order, due to which the confusion is created as to
whether the matter is remanded only to the extent of
two properties or three properties. To that extent,
defendant Nos.12 and 13 have preferred this Appeal
from Order seeking clarification.
14. Since, the Trial Court as well as First
AO68-15&19-16.odt
Appellate Court have clearly held that CTS No. 1899
is a self acquired property of defendant Nos.1 and
2, therefore the question of its partition in the
remanded suit will not arise. Hence, with this
clarification, the Appeal From Order No. 19/16 is
liable to be disposed of. Hence following order:
O R D E R
i. Appeal from Order No. 68/2015 is dismissed.
ii. Appeal from Order No. 19/2016 is disposed of
with the clarification that the suit is
remanded only for partition of CTS Nos. 1469
and 1470.
iii. In view of disposal of the Appeals from order,
pending civil applications also stand disposed
of.
iv. No order as to costs.
(K. L. WADANE, J.)
JPC
