Bombay High Court
Smt.Saraswatibai D/O Rajaramji ... vs Shri Shankar Baburao Pohekar & 2 ... on 21 June, 2017
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Second Appeal No. 197 of 2003
Smt. Saraswatibai daughter Rajaramji
Nakhle,
aged about 48 years,
occupation - Household & Cultivator,
resident of Dhakulgaon,
Tq. Tiosa, Distt. Amravati. ..... Appellant.
Versus
1. Shri Shankar son of Baburao Pohekar,
aged about 45 years,
occupation - Service,
resident of Dhakulgaon,
at present resident of
Tikamghad,
Tq. & Distt. Tikamghad [M.P.].
2. Sau. Geetabai Shravanji Gambhir,
aged about 52 years,
occupation - household,
resident of Deoli,
Tq. Deoli,
Distt. Wardha.
3. Sau. Sudha Mahadeorao Kalpande,
aged 48 years,
occupation - household,
resident of Sagar,
Tq. & Distt. Sagar [M.P.]. ..... Respondents.
*****
Mr. Katkar, Adv., holding for Mr. N.R. Saboo, Adv., for the
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appellant.
None for the respondents though served.
*****
CORAM : A.S. CHANDURKAR, J.
Date : 21st June, 2017
ORAL JUDGMENT:
01. This appeal has been admitted on the following substantial
question of law:-
"Whether the decree passed by the lower
appellate Court is vitiated on account of the
fact that the lower appellate Court has
declared that the respondent no.1/plaintiff is
entitled to half share in the suit property
without any claim being made by
plaintiff/respondent no.1 for half share in the
suit property?"
02. The appellant is the original defendant no.1 in the suit filed
for cancellation of sale-deed dated 9th March, 1995. By this sale-deed,
the defendant no.2 who is the father of the plaintiff executed a sale of
the suit property in favour of the defendant no.1. According to the
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plaintiff, the suit property being ancestral property and the plaintiff
having one-fourth share therein, he filed suit for cancellation of said
sale-deed, partition and separate possession. According to the
defendant no.1, the suit property was the self-acquired property of
defendant no.2. The defendant no.1 was initially residing as a tenant,
after which she purchased the suit property. It was pleaded that the
alienation was towards legal necessity. Defendant nos. 2 to 4 came up
with the case that the suit property was ancestral property.
03. The trial Court on consideration of the evidence on record
held the suit property to be ancestral property. It was held that legal
necessity on the part of defendant no.2 in alienating the same was not
proved. Hence, by judgment dated 5th February, 1998, the suit was
decreed and the sale-deed in question was declared null and void to
the extent of one-fourth share of the plaintiff.
04. This decree was challenged by the defendant no.1 alone. In
the appeal, it was her case that suit for partial partition was not
maintainable and the sale was valid. The appellate Court by its
judgment dated 7th December, 2002 affirmed the findings recorded by
the trial Court and held that the sale-deed was not binding on the
plaintiff. It, however, modified the decree of the trial Court and
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granted half share to the plaintiff.
05. Shri Katkar, learned counsel for the appellant, submitted
that in absence of any appeal/Cross-objection by the plaintiff, the
decree in his favour could not have been modified by the appellate
Court to the prejudice of the defendant no.1. The plaintiff was satisfied
with one-fourth share in the suit property and had, therefore, not
challenged the same. It was not open for the appellate Court to have
enhanced the plaintiff's share in the suit property. He, therefore,
submitted that judgment of the trial Court was liable to be restored.
06. There was no appearance on behalf of the respondents on
15th June, 2017. Today also, there is no appearance on their behalf.
With the assistance of the learned counsel for the appellant, I have
perused the record as well as the impugned judgment.
07. It is not in dispute that against the decree passed by the
trial Court, it is only the defendant no.1 who preferred an appeal. The
plaintiff had prayed for one-fourth share in the suit property and was
granted the same by the trial Court. In absence of any appeal/cross-
objection by him, the appellate Court could not have modified the
decree passed by the trial Court to the prejudice of the defendant no.1
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in her own appeal while dismissing the same. In fact, in the plaint
also, only one-fourth share was claimed by the plaintiff. Thus, in
absence of any challenge to that decree, it could not have been
modified in favour of the plaintiff. The substantial question of law is
answered in favour of the appellant.
08. In the result, the following order is passed:-
ORDER
[a] Judgment and decree passed by the appellate
Court to the extent it has modified the decree of
the trial Court is quashed and set aside.
[b] The decree passed by the trial Court in Regular
Civil Suit No. 108 of 1995 stands restored.
Second Appeal is allowed in aforesaid terms. No costs.
Judge
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