Sattarsha Dilbarsha And Others vs Ajizabi Dilbarsha And Others
2017 Latest Caselaw 4452 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR
                        Second Appeal No. 280 of 2016


 1.      Sattarsha Dibarsha,
         aged about 72 years,
         occupation - Agriculturist,
         resident of Khelnagwe/Daryapur,
         Tq. Daryapur,
         Distt. Amravati [Mah. State]i.

 2.      Jamirsha Sattarsha,
         aged about 34 years,
         occupation - Agriculturist,
         resident of Khelnagwe/Daryapur,
         Tq. Daryapur,
         Distt. Amravati [Mah. State].

 3.      Muzamillasha Sattarsha,
         aged about 31 years,
         occupation - Agriculturist,
         resident of Khelnagwe/Daryapur,
         Tq. Daryapur,
         Distt. Amravati [Mah. State].       .....        Appellants.
                                                   Org. Defendants



                                   Versus


 1.      Ajizabi Dilbarsha,
         aged about 89 years,
         occupation - Agriculturist,
         resident of Khelnagwe/Daryapur,
         Tq. Daryapur,
         Distt. Amravati [Mah. State].



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 2.      Sugrabano Kadirsha,
         aged about 67 years,
         occupation - Agriculturist,
         resident of Patipura,
         Amravati, Distt. Amravati
         [Mah. State].

 3.      Jaibunnisa Sattarsha,
         aged about 67 years,
         occupation - Agriculturist,
         resident of Khelnagwe/Daryapur,
         Tq. Daryapur,
         Distt. Amravati [Mah. State].

 4.      Smt. Ruksana Parvin Mumtajsha,
         aged about 39 years,
         occupation - Household,
         resident of Bada Tajbagh Zopadpatii,
         Nagpur, Tq. & Distt. Nagpur
         [Mah. State].                    .....              Respondents.
                                                             Org. Plffs.



                                 *****
 Mr. Akhtar Ansari, Adv., for the appellants.

 Mr. V.G. Palshikar, Adv., for respondents.

                                     *****


                                CORAM :        A.S. CHANDURKAR, J.

                                Date       :   13th July, 2017

 ORAL ORDER :

01. Admit. Shri V.G. Palshikar, learned counsel, waives notice

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on behalf of respondents.

02. The following substantial question of law arises for

consideration:-

"Whether the appellate Court in exercise of powers under Order-XLI, Rue 33 of the Code of Civil Procedure, 1908, could have granted the relief of partition, though there was no prayer in that regard made in the plaint?

The facts relevant are stated thus:-

03. The respondents are the original plaintiffs. It is their case

that one Dilbarsha was the owner of Field Survey No. 139, having

purchased the same from his own income. He had two sons and two

daughters. According to the plaintiffs, who are the legal heirs of

Dilbarsha, the defendant nos. 1 to 3 claimed title to the suit field on

the basis of Will dated 10th December, 1998, which, they claimed, was

executed by Dilbarsha. The plaintiffs claimed to be in possession of

the suit field and as their possession was sought to be disturbed by the

defendants, they filed suit for a declaration that the said Will was sham

and bogus with further relief of permanent injunction so as to protect

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their possession.

04. The suit was resisted by the defendants on the plea that Will

dated 10th December, 1998 was executed by Dilbarsha out of love

and affection for defendant nos. 2 and 3. As the suit property was the

exclusive property of Dilbarsha , he was competent to bequeath the

same.

05. The trial Court held that the plaintiffs had proved that the

Will dated 10th December, 1998 was sham and bogus and was not

binding on the plaintiffs. It, therefore, decreed the suit and also

granted the relief of perpetual injunction.

06. Being aggrieved, the defendants filed appeal. The appellate

Court confirmed the finding recorded by the trial Court that the Will

dated 10th December, 1998 was not binding on the plaintiffs. It further

held that after the death of Dilbarsha, all the legal heirs were entitled

to inherit the suit property and, therefore, the relief of injunction could

not be granted to the plaintiffs. Thereafter, in exercise of powers

under provisions of Order-XLI, Rule 33 of the Civil Procedure Code,

1908 [for short, "the Code"] the appellate Court proceeded to grant

the relief of partition and separate possession to the co-sharers. Being

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aggrieved, the defendants have filed this Second Appeal.

07. Shri A. Ansari, learned counsel for the appellants, submitted

that in absence of any prayer in the plaint for grant of decree of

partition and separate possession, the appellate Court in exercise of

powers under Order-XLI, Rule 33 of the Code could not have granted

the same. The only relief sought was with regard to invalidity of the

Will dated 10th December, 1998 and consequential relief of perpetual

injunction. In absence of any prayer being made, the appellate Court

exceeded its jurisdiction in granting said relief. If at all the plaintiffs

wanted said relief, they could have either prayed for the same in the

suit or could have amended the plaint. In absence of any such prayer,

the relief not prayed for could not have been granted. In this regard,

the learned counsel placed reliance on the judgment in Indrakumar

Daulat Khushalani Vs. Atmaram Vitthal Zade & others [2015 (3)

Mh.L.J. 613]. It was then submitted that the third daughter of

Dilbarsha was not a party to the suit. As all co-sharers were not before

the Court, the relief of partition as granted was not in accordance with

law.

08. Shri V.G. Palshikar, learned counsel for the respondents,

supported the impugned judgment. According to him, the appellate

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Court acted within its jurisdiction when it granted relief of partition.

According to him, the parties were related to each other and the Will

dated 10th December, 1998 having been held to be not proved, each

legal heir was entitled to a share in the property. Therefore, no

prejudice was caused to either party by granting the relief of partition.

According to him, the appellate Court has wide powers under

provisions of Order-XLI, Rule 33 of the Code to pass such decree or

order as the case may require, though the respondents may not have

filed any appeal or cross-objection. He submitted that even relief not

prayed for could be granted by the appellate Court in exercise of

aforesaid power in the facts and circumstances of the case. He

submitted that this wide power was vested with the appellate Court to

enable it to do complete justice between the parties. In support of his

submissions, the learned counsel relied upon the decisions in [1]

Panna Lal Vs. State of Bombay [AIR 1963 SC 1516], [2]

Ramchand (dead) by his legal representatives Vs. Thakur Janki

Ballabhji Maharashtra & another [AIR 1970 SC 532], [3] Mahant

Dhangir & another Vs. Shri Madan Mohan & others [AIR 1988 SC

54], [4] K. Muthuswami Gounder Vs. N. Palaniappa Gounder

[AIR 1998 SC 3118], and [5] Chandramohan Ramchandra Patil &

others Vs. Bapu Koyappa Patil (dead) through L.Rs. and others

[AIR 2003 SC 1754].

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09. I have given due consideration to the respective

submissions after hearing the learned counsel at length.

10. In so far as finding that the Will dated 10th December, 1998

was illegal and not binding on the plaintiffs is concerned, both the

Courts have concurrently held in favour of the plaintiffs. This finding

has been arrived at after considering the entire evidence on record and

I do not have any reason in law to disagree with the said conclusion.

11. The trial Court decreed the suit in terms of the prayers

made in the plaint. The appellate Court while maintaining the finding

as regards invalidity of the Will dated 10th December, 1998 reversed

the decree with regard to grant of perpetual injunction on the ground

that one co-sharer could not injunct another co-sharer from enjoying

the suit property. The appellate Court then found that as the Will was

not proved and the dispute was amongst the members of the family, it

was a fit case to exercise power under Order-XLI, Rue 33 of the Code

to grant the relief of partition.

12. Before considering the correctness of the exercise of grant

of such relief under provisions of Order-XLI, Rue 33 of the Code, it

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would be apposite to refer to the legal position as laid down by the

Honourable Supreme Court in that regard.

13. While considering the scope of the powers of the appellate

Court under provisions of Order-XLI, Rule 33 of the Code, the

Constitution Bench of the Honourable Supreme Court in Panna Lal

[supra] observed that the appellate Court while denying relief to the

appellant could grant relief to the respondent as "the case may

require." In Mahant Dhangir [supra], it was held that the provisions of

Order-XLI, Rule 22 and Rule 33 of the Code were not mutually

exclusive. Rule 33 was liberal enough and the only requirements for

exercise of such discretion were that the parties before the lower Court

should be there before the appellate Court and the question raised

must arise properly out of the judgment of the lower Court.

In Chaya and others Vs. Bapusaheb and others [ (1994)

2 SCC 41], it was observed by the Honourable Supreme Court in

paragraph 14 of its decision as under:-

"14. This provision is based on a salutary principle that the appellate court should have the power to do complete justice between the parties. The object of the rule is also to avoid contradictory and inconsistent decisions on the same questions in the same suits. For this purpose, the rule confers a wide discretionary power on the appellate court to pass such decree or order as ought to have been passed or as the nature of the case may require, notwithstanding the fact that the

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appeal is only with regard to a part of the decree or that the party in whose favour the power is proposed to be exercised has not filed any appeal or cross- objection. While it is true that since the power is derogative of the general principle that a party cannot avoid the effect of a decree against him without filing an appeal or cross- objection and, therefore, the power has to be exercised with care and caution, it is also true that in an appropriate case, the appellate court should not hesitate to exercise the discretion conferred by the said rule."

14. From aforesaid, it can be seen that the appellate Court is

vested with wide powers to enable it to do complete justice between

the parties so as to pass such decree or order as the case may require

even in absence of any appeal or cross-appeal. Though it was urged

on behalf of the appellants that only such relief that was prayed for in

the plaint could be granted in exercise of such powers, I am not in a

position to accept said submission. The exercise of these wide powers

is not trammeled by the absence of any prayer being made in the

plaint. This exercise of power is, however, circumscribed for being

exercised only in rare cases and when the facts of such case demand

its exercise. Reference may be made to the judgment of the

Honourable Supreme Court in Narayanrao (dead) through LRs.

And others Vs. Sudarshan [1995 Supp (4) SCC 463]. Therein, a suit

for partition and separate possession was filed. The trial Court

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decreed the suit. In the appeal filed by the defendant, the High Court

while dismissing the same granted mesne profits to the plaintiffs. It

was held that even though there was no prayer for grant of mesne

profits and no issue in that regard was framed by the trial Court, the

High Court rightly invoked the powers under Order-XLI, Rule 33 of the

Code for doing complete justice between the parties. Thus, the relief

of mesne profits was granted even in absence of any prayer for the

same.

15. In the judgment relied upon by the learned counsel for the

appellants in the case of Indrakumar Daulat Khushlani [supra], the

plaintiff had filed suit for a declaration that the sale-deed dated 8th

January, 1990 executed by the defendant no.2 in favour of defendant

no.1 was null and void. A prayer for perpetual injunction was also

made. The trial Court partly decreed the suit and granted only the

relief of perpetual injunction. The relief of declaration with regard to

the sale-deed was specifically refused. An appeal was filed by the

defendant no.1. The appellate Court while dismissing said appeal

granted further relief of declaration that the sale-deed dated 8th

January, 1990 was null and void. In those facts, it was held that part of

the relief which was prayed for having been specifically refused, the

decree passed by the trial Court could not have been altered while

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exercising powers under provisions of Order-XLI, Rule 33 of the Code.

It was a case where a relief that was specifically sought in the plaint

having been refused by the trial Court was granted by the appellate

Court in absence of any cross-objections or cross-appeal. The ratio of

that decision cannot apply to the case in hand, inasmuch as there is no

prayer with regard to partition made by the plaintiffs. The only relief

sought is with regard to invalidity of the Will dated 10th December,

1998. The question, therefore, is with regard to grant of relief which

has not been prayed for and not relief that has been specifically

refused. Hence, the said decision is clearly distinguishable on these

facts.

16. The facts of the present case indicate that the appellate

Court found that mere grant of declaration that the Will dated 10th

December, 1998 was illegal was not sufficient. As it found that the

dispute was amongst family members, it found it appropriate to grant

the relief of partition in exercise of powers under Order-XLI, Rule 33 of

the Code. In the light of the law referred to herein above, I find that

the appellate Court was justified in exercising its discretion of granting

the relief of partition in absence of any prayer made in that regard.

Mere grant of declaration that the Will was invalid was not found

sufficient and by granting the relief of partition, the appellate Court

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intended to put an end to the dispute between the parties. I do not

find any legal impediment to interfere with the discretion exercised by

the appellate Court.

Hence, the substantial question of law as framed is

answered by holding that the appellate Court in exercise of powers

under Order-XLI, Rule 33 of the Code was justified in granting the relief

of partition in absence of any prayer made in that regard.

17. Having held so, an ancillary aspect that arises is whether

the appellate Court should put the parties to notice that in the facts of

the case, it intends to exercise powers under provisions of Order-XLI,

Rule 33 of the Code. In my view, the interests of justice and fair play

require the appellate Court ought to put the parties to notice that it

intends to exercise powers under provisions of Order-XLI, Rule 33 of

the Code while deciding the appeal. This course, if followed, would

enable the parties to put forth their contentions in that regard and the

same would also facilitate a proper exercise of discretion by the

appellate Court. It is also possible that after hearing the parties on the

said aspect, the appellate Court would be in a position to effectively

exercise its discretion in that regard. Putting the parties on notice

would also obviate the possibility of a remand on the question that no

opportunity was granted to the parties and that if the same would

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have been granted, there was a possibility of some other relief being

granted.

18. In the present case, according to the appellants, all the legal

heirs had not been impleaded in the proceedings and, therefore, the

relief of partition as granted has not benefited all the parties. In the

light of what has been observed herein above, I find that by exercise

powers under provisions of Order-XLI, Rule 25 of the Code, the

appellate Court can be directed to consider the manner in which the

relief of partition can be granted. This would enable the parties to

canvass their contentions in that regard and all necessary parties

would be before the Court. Hence, by upholding the exercise of grant

of relief of partition by the appellate Court under provisions of Order-

XLI, Rule 33 of the Code, the following issue is referred to the appellate

Court under provisions of Order-XLI, Rule 25 of the Code for its

determination:-

"What are the shares to which the parties are entitled

by way of partition?"

It would be open for the appellate Court to hear the parties

in that regard and pass such orders as the interests of the case

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demand in accordance with law, including addition of necessary

parties. The parties to the appeal shall appear before the appellate

Court on 7th August, 2017 in that context. The findings on said issue

be returned by end of October, 2017. Needless to state that after such

adjudication, the rights of the parties to challenge the same remain

preserved.

Put up for further consideration on 6th November, 2017.

Judge

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