Ashish Ashok Kuchewar vs Vitthal Mahadeorao Kuchewar And 2 ...
2017 Latest Caselaw 952 Bom

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


                         SECOND APPEAL NO. 370 OF 2004 


            Ashish s/o Ashok Kuchewar,
            aged about 23 years, Occ. Agriculturist,
            R/o. Zadgaon (Gosawi),
            Tq. And Distt. Wardha......                                      APPELLANT

                                 ...VERSUS...

 1.         Vitthal s/o Mahadeorao Kuchewar,
            aged about 62 years,

 2.         Pundlik Yadaorao Kuchewar,
            Aged about 65 years,

 3.         Vasant s/o Yadaorao Kuchewar,
            aged about 55 years,

            All are cultivators by occupation,
            Resident of Zadgaon (Gosawi)
            Tq. And Distt. Wardha......                             RESPONDENTS

 -------------------------------------------------------------------------------------------
 Shri S.V.Sohoni, counsel for appellant
 Shri Vilas Wanjari, counsel for Respondent nos. 2 and 3
 -------------------------------------------------------------------------------------------
                          CORAM: R. K. DESHPANDE, J.

                          DATE    : 22     nd  MARCH,  2017 .


 ORAL JUDGMENT


            1]             In Regular Civil Suit No. 172 of  1994, the trial

Court passed a decree of permanent injunction restraining

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the defendants from disturbing the possession of the plaintiff

over the suit property. The lower appellate Court has

reversed the decision of the trial Court and the suit has been

dismissed. Hence, the original plaintiff is before this Court.

2] The plaintiff claimed to be the owner of the suit

property on the basis of Will dated 12.03.1993 said to have

been executed by Smt. Shantabai in respect of the suit

property which was registered on 05.05.1994 i.e. after the

death of Shantabai on 18.01.1994. The trial Court records

the finding that the plaintiff is found to be in possession of the

suit property. The lower appellate Court has reversed this

finding and it is held that the plaintiff has failed to establish

possession over the suit property. The finding of the lower

appellate Court is based upon the documents available on

record and it is a possible view of the matter. The lower

appellate Court also dismissed the suit on the ground that the

legal heirs of Smt. Shantabai were not joined as parties to

the suit and the title could not be established on the basis of

Will dated 12.03.1993.

          3]               On   09.03.2005,   this   Court   admitted   the   matter



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and passed an order framing substantial question of law as

under;

[i] Whether the heirs of deceased Shantabai were

necessary parties to the suit?

[ii] Whether the respondents could establish their title

to the suit property in the absence of challenging

the will dated 12.03.1993?

4] After hearing the learned counsels appearing for

the parties, I find that the suit in question was not required to

be dismissed for non-joinder of necessary parties. The lower

appellate Court has committed an error in taking such a view.

The suit was simplicitor for grant of injunction restraining the

defendants from interfering with the possession of the plaintiff

on the basis of Will dated 12.03.1993. The proof of Will was

not the matter in issue. The substantial question of law at

Sr.No.1 is, therefore, answered accordingly.

5] Shri Sohoni, the learned counsel for the

appellant/original plaintiff inviting my attention to the Regular

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Darkhast No. 98 of 2004 filed by the respondents claiming

possession of the suit property from the plaintiff on the basis

of the decision delivered by the lower appellate Court. He

submits that this itself indicates that the appellant/plaintiff is

in possession of the suit property.

6] In view of the aforesaid position, the second

appeal can be disposed of by an order as under;

[I] The plaintiff shall be at liberty to file a suit for title

on the basis of the alleged Will dated 12.03.1993

from Smt.Shantabai by joining all the heirs of

Smt. Shantabai as party defendants in the suit.

[II] None of the observations made by the Courts

below either one way or the other shall be

binding while deciding the suit for title.

[III] The appellant/plaintiff shall be at liberty to file an

application for grant of temporary injunction in

such a suit to restrain the defendants from

interfering with his possession over the suit

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property.

[IV] The trial Court shall decide such a suit and the

application in accordance with law.

Second appeal stands disposed of accordingly. No

order as to costs.

JUDGE

Rvjalit