Indirabai W/O Bapuraoji ... vs Sau.Prabhawati Bapuraoji ...
2017 Latest Caselaw 762 Bom

  sa68.04.J.odt                                                                                                      1/5



            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      NAGPUR BENCH, NAGPUR


                             SECOND APPEAL NO.68 OF 2004


 1]         Indirabai w/o Bapuraoji Chohatkar,
            Aged 70 years, Occupation: Cultivator.

 2]         Raju s/o Bapuraoji Chohatkar,
            Aged 40 years, Occupation: Cultivator.

 3]         Pramod s/o Bapuraoji Chohatkar,
            Aged 35 years, Occupation: Cultivator.

 4]         Moreshwar s/o Bapuraoji Chohatkar,
            Aged 30 years, Occupation: Cultivator.

 5]         Arun s/o Bapurao Chohatkar,
            Aged 50 years, Occupation: Cultivator.

            All Sr. Nos.1 to 5 residents of Talegaon,
            Tahsil Ashti, District Wardha.         ....... APPELLANTS


                                             ...V E R S U S...


          Sau. Prabhawati w/o Bapuraoji
          Chikhalkar, Aged about 60 years,
          Occupation: Household, Resident of
          Ayodhayanagar, Behind Sai Mandir,
          Plot No.7 Nagpur, Tahsil and
          District Nagpur.                                   ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Shri A.A. Choube, Advocate for Appellants.
          Shri P.A. Gode, Advocate for Respondent.
 -------------------------------------------------------------------------------------------

                       CORAM:  R.K. DESHPANDE, J. 

                                      th    MARCH, 2017.
                       DATE:      16





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 ORAL JUDGMENT



 1]                    The Trial Court dismissed Regular Civil Suit No.10 of

1994 for possession and permanent injunction on the basis of title

in respect of the suit property. The lower Appellate Court has

reversed the decision of the Trial Court and a decree is passed in

favour of the plaintiff for delivery of possession and perpetual

injunction restraining the defendants from interfering the

possession of the plaintiff over the suit property.

2] This Court passed an order on 26.04.2005 admitting

the matter and framing substantial questions of law as under:

Heard.

2. Admit on the following substantial questions of law:-

i) Whether non-consideration of the documents viz. registered Vyawasthapatra [Exh.73], divorce deed and electoral roll vitiate the judgment of the appellate Court ?

ii) Whether there has been misconstruction of the documents in respect of the house in occupation of the Satyabhamabai ? If so, what is the effect thereof ?

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 3]                    With the assistance of the learned counsels appearing

for the parties, I have gone through the copy of plaint, written

statement and the judgment delivered by both the Courts below.

It is apparent that none of the Courts below have considered the

real controversy involved in the matter, in the light of the case

put-forth by the plaintiff. The plaintiff claimed to be the owner of

the suit property on the basis of oral partition and her long

standing possession over it. The Trial Court holds that oral

partition has not been proved. The lower Appellate Court without

ascertaining what the actual suit property is, holds that the

property was partitioned and it fell to the share of plaintiff.

4] Undisputedly, the property was owned by one

Bapurao. The original plaintiff Sau. Satyabhamabai was the first

wife of Bapurao and the defendant No.1-Indirabai was the second

wife. This Court framed the substantial questions of law with

reference to Vyawasthapatra at Exh.73. After going through the

judgment delivered by both the Courts below, I do not find any

reference to Vyawasthapatra by any of the Courts below.

The lower Appellate Court seems to have completely lost the track

of the controversy involved in the matter. There is no

identification of the suit property and this is what the finding of

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the lower Appellate Court. In para 12 of the judgment, the lower

Appellate Court holds that house numbers are different.

Plaint shows that suit property is the house bearing demand

No.832 (new 841). The lower Appellate Court could not have

therefore, proceeded to pass a decree in favour of the plaintiff.

5] In the light of the aforesaid factual position, both the

learned counsels have no objection for remand of the matter

before the Trial Court for considering the entire controversy afresh

keeping in view the observations made by this Court. Hence, the

second appeal will have to be allowed by setting aside the decision

given by both the Courts below with an order of remand.

6] In the result, the second appeal is allowed.

The judgment and order dated 14.01.2004 passed in Regular Civil

Appeal No.100 of 1999 along with the judgment and order dated

27.07.1999 passed by the Trial Court in Regular Civil Suit No.10

of 1994 is hereby quashed and set aside. The matter is remitted

back to the Trial Court to decide it afresh in accordance with law,

keeping in view the observations made by this Court. The parties

to appear before the Trial Court on 24.04.2017. Record and

proceedings be sent back to the Courts below immediately.

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The Trial Court to decide the suit within a period of eight months

from the date of first appearance of the parties before it. No order

as to costs.

JUDGE

NSN