Bombay High Court
Maidabai W/O. Ashraf Patolkar vs Babbu @ Babulal S/O. Moti Patokar ... on 27 November, 2017
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT
BOMBAY NAGPUR BENCH AT NAGPUR
Writ Petition No. 3978 of 2015
PETITIONER: Maidabai w/o Ashraf Patokar,
Aged about 72 years, Occupation: Cultivator,
R/o Nimdari, Tahsil Achalpur, Dist. Amravati.
Through Legal 1A. Ajabrao s/o Ashraf Patankar, Aged about 64
Heirs years, Occupation: Labour Work R/o Belkheda
Post Salepur Tah:- Achalpur, Dist. Amravati (Son)
1B Smt. Budhiya w/o Mohanlal Khadke,
Aged about 67 years, Occupation:- Labour work,
r/o Pimpli Dhana Post Saval Mendha
Tahsil-Bhainsdehi Dist. Baitl M.P. (Daughter)
1C Smt. Mangali w/o Mukram Shelukar,
Aged about 66 years, Occupation: Labour work,
R/o Vadura, Post Salepur, Tahsil-Achalpur,
Dist. Amravati (Daughter)
1D Smt. Parbha w/o Pannalal Baraskar,
Aged about 50 years, Occupation:- Labour work,
R/o Gajanan Colony, Infront of Khule Plot, Kandli
Post Paratwada, Tahsil, Achalpur Dist. Amravati
(Daughter)
1E Smt. Kapuri w/o Bhayyalal Metkar,
Aged about 47 Years, Occupation:- Labour Work,
R/o Gajanan Colony, infront of Khule Plot, Kandli
Post Paratwada, Tah. Achalpur, Dist. Amravati.
(Daughter)
1F. Shri Lekhiram s/o Ashraf Patankar, Aged about 45
years, Occupation:- Tailor Work, R/o Gajanan
Colony, infront of Khule Plot, Kandli Post
Paratwada, Tahsil Achalpur, Dist. Amravati (Son)
1G Smt. Kolhi w/o Pancham Baraskar,
Aged about 65 years, R/o Vadura, Post Salepur,
Tah. Achalpur, Dist. Amravati (Daughter)
-VERSUS-
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RESPONDENTS: 1 Babbu @ Babulal s/o Moti Patokar,
Aged about 62 years, Occupation: Labour Work.
2 Dulichand s/o Babbu Patokar,
Aged about 44 years, Occupation: Labour work.
3. Ruplal s/o Babbu Patokar,
Aged about 42 Years, Occupation: Labour work.
4. Smt. Nanibai w/o Moti Patokar,
Aged about 70 years, Occupation: Cultivator
R/o Near the house of Babbu @ Babulal Patokar
Village Nimdari Tah. Achalpur, Dist. Amravati.
Through Legal heirs 4B Shri Hublal s/o Moti Patokar,
Aged Adult, Occupation- Labour work,
R/o Nimdari Tah. Achalpur, Dist.Amravati
4C Smt. Mangali w/o Banshi Rajne,
Aged Adult, Occupation- Not known,
R/o Khemai Tah-Bhainsdehi,Dist. Baitl (M.P)
4D Smt. Phulu w/o Jangali Mavaskar (Daughter)
(Since deceased through her heir)
4D1 Shri Babu s/o Jangali Mavaskar,
Aged adult, Occupation -Labour work,
R/o Masona Post-Malhara, Tah. Achalpur
Dist. Amravati (Grand Son)
Mr. K.B. Zinjarde, Advocate for the petitioners.
Mr. G.M. Kubade, Advocate for the Respondents.
CORAM: Z.A. Haq, J.
DATED: 27.11.2017.
Oral Judgment
Heard.
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Rule. Rule made returnable forthwith.
1. The petitioner (original plaintiff) has succeeded in the civil
suit filed by her and by the judgment dated 12/02/2007, the trial
Court has decreed her claim for half share in the suit property. The
defendants have challenged the judgment and decree passed by the
trial Court by filing appeal bearing R.C.A. No.37/07, which is pending
before District Court.
2. In this appeal, the defendant nos. 2 to 4 (who are the
appellants nos.2 to 4 before the District Court) had filed an
application under Rule 27 Order 41 of the Code of Civil Procedure
seeking permission to produce the copies of 3 Death Certificates. This
application is allowed by the learned District Judge by the impugned
order. While permitting the production of copies of the death
certificates, the learned District Judge has granted liberty to the
appellants to adduce additional evidence to prove the Death
Certificates and to prove the execution of the WILL. As per this order
the evidence is to be recorded before the District Court. The petitioner
(original plaintiff) being aggrieved by this order, has filed this
petition.
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3. Shri K.B. Zinjarde, the learned Advocate for the petitioner
has submitted that the fact of death of those 3 persons regarding
whom the death certificates are produced by the appellant Nos. 2 to 4
before District Court is not in dispute and the fact is considered by the
Trial Court also. The learned advocate for the petitioner has further
submitted that the petitioner is not disputing the fact of death of
those 3 persons. It is argued that the issue about execution of WILL
dated 22/03/1983 in favour of the defendants nos. 3 and 4 had been
before the trial Court, the parties have lead evidence and the trial
Court has recorded the finding against the defendants and
overlooking this, the learned District Judge has granted permission to
the defendants to lead additional evidence before the District Court
on the point of execution of the WILL. It is submitted that the learned
District Judge has exceeded his jurisdiction by permitting the
defendants to lead additional evidence on the point of execution of
the WILL.
4. I find substances in the submissions made on behalf of the
petitioner. From the judgment passed by the trial Court it is clear that
the issue of execution of the WILL arose before the trial Court and the
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trial Court has dealt with it exhaustively. In the application (Exh.
No.45) filed by the appellant Nos.2 to 4 before the District Court,
there is nothing on the basis of which the permission to lead
additional evidence on the point of execution of the WILL could have
been granted by the District Court. I find that the impugned order is
unsustainable having been passed in excessive exercise of jurisdiction
by the District Court.
Hence the following order:
ORDER
1) The impugned order is set aside.
2) The application (Exh. No. 45) filed by the
appellant Nos.2 to 4 in appeal before District Court is
dismissed.
Rule is made absolute in the above terms.
3) The learned Advocate for the respondent Nos. 1
to 3 (appellants nos.2 to 4) in appeal before District Court
failed to remain present in the morning session as well as
in the afternoon session and there has been no assistance
from the respondents in deciding the petition. The
respondent Nos. 1 to 3 (appellant nos. 02 to 04 in appeal
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before District Court) shall pay costs of Rs. 6000/- by
demand draft to the petitioner and produce the receipt
of payment on the record of District Court within one
month. If this order is not complied with, the District Court
may pass appropriate orders against the respondent Nos. 1
to 3 (appellant Nos. 02 to 04 in appeal before the District
Court).
JUDGE
nandurkar
