Bombay High Court
Yuvraj Sidramappa Birajdar vs Sidramappa P Birajdar Died Thr. ... on 23 January, 2018
Bench: M.S. Sonak
(1) 922-AO 7 of 2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
922 APPEAL FROM ORDER NO.7 OF 2017
WITH CA/832/2017 IN AO/7/2017
. Yuvraj s/o Sidramappa Birajdar
Age: 49 years, Occu.: Agri.,
R/o.Lohgaon, Tq.Tuljapur,
Dist.Osmanabad. ..Appellant
VERSUS
1. Sidramappa s/o Pirappa Birajdar
Died Through his LRs
1A. Kalawati s/o Suryakant Angdikar,
Died Through her LR
Shivanand s/o Suryakant Angdikar (Patil)
Age: 55 years, Occu.: Agri.
R/o.Kini-Bhangar, Tq.Akkalkot,
Dist.Solapur.
1B. Shridevi w/o Mallinath Angdikar (Patil)
Age: 60 years, Occu.: Household,
R/o.: Kini-Bhangar, Tq.Akkalkot,
Dist.Solapur.
1C. Indumati w/o. Gorakhnath Wagdare
Age: 65 years, Occu.: Labour,
R/o.Karjat-Gundga, Tq.Karjat,
Dist.Raigad
At.Present
R/o.Gholasgaon, Tq.Akkalkot,
Dist.Solapur.
1D. Mahadevi w/o. Gurupadappa Patil
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(2) 922-AO 7 of 2017
Age: 55 years, Occu.: Household,
R/o.Rodgi, Tq.Indi, Dist.Vaijapur,
(State of Karnataka)
1E. Jagdevi w/o Virbassapa Nivargi
Age: 64 years, Occu.: Household,
R/o.Singadgaon, Tq.North Solapur,
Dist.Solapur.
2. Shivshankar s/o Sidramappa Birajdar
Age: 65 years, Occu.: Driver,
R/o.: B & C Office, Sangola,
Tq.Sangola, Dist.Solapur.
3. Basawraj s/o Sidramappa Birajdar
Age: 60 years, Occu.: Agri.,
R/o.Lohgaon, Tq.Tuljapur,
Dist.Osmanabad.
4. Gangadhar s/o Basawraj Birajdar
Age: 24 years, Occu.: Agri.,
R/o.Lohgaon, Tq.Tuljapur,
Dist.Osmanabad. ..Respondents.
...
Advocate for Appellant : Mr.K.K.Kulkarni
Advocate for Respondent Nos.2 to 4: Mr.B.R.Sontakke Patil
...
CORAM : M.S.SONAK, J.
DATE : 23rd JANUARY 2018
ORAL JUDGMENT:-
1) Heard Mr.K.K.Kulkarni learned counsel for the
appellant and Mr.B.R.Sontakke Patil for respondent Nos.2
(3) 922-AO 7 of 2017
to 4. The record indicates that the remaining
respondents are also served.
2) Taking into consideration the narrow issue involved
in this matter, this appeal is being disposed of.
3) Challenge in this appeal is to the order dated
6.10.2006 by which the Appeal Court has remanded Regular
Civil Suit No.20 of 1997 to the Trial Court basically on
the following two grounds:-
(a) That on the demise of the original defendant
No.1, the plaintiff brought on record only five out
of his six daughters. Therefore, the Appeal Court
has reasoned that the Suit was bad for non-joinder of
necessary party and has granted opportunity to the
plaintiff to bring on record sixth daughter in the
Suit. Since this sixth daughter is to be granted
opportunity of defence, matter has been remanded to
the Trial Court.
(4) 922-AO 7 of 2017
(b) That the evidence on record indicates that Land
Block No.306 of Village Lohagaon was partitioned
between plaintiff and defendant Nos.2 and 3 equally,
the Appeal Court holds that this means that the said
property was also joint family property required in
the common hotchpotch. Since, this property was not
included in common hotchpotch, opportunity to be
granted for including the same by amending the Suit
and this is the second reason for remand.
4) Mr.Kulkarni learned counsel for the appellant
submits that upon the demise of original defendant No.1,
since, five out of six daughters were admittedly brought
on record, Suit of defendant No.1 was substantially
represented. Therefore, there was no reason for Appeal
Court to proceed on the basis that the Suit abates or was
bad in law for non-joinder of necessary party. He
submits that in any case, the plaintiff i.e. the
(5) 922-AO 7 of 2017
appellant is prepared to take risk of non-joinder of
sixth daughter. Because, the appellant verily believe
that sixth daughter have no objection on the said issue.
Mr.Kulkarni further submits that there is no pleadings
whatsoever in relation to Land Block No.306 of village
Lohagaon either in the plaint or written statement.
Accordingly, it was not open to the Appeal Court for
inclusion of this property in the partition Suit or in
common hotchpotch. In any case, Mr.Kulkarni submits that
this was clearly not a good ground for remand.
5) Mr.B.R.Sontakke Patil learned counsel for the
respondent Nos.2 to 4 submits that it is a fact that the
sixth daughter of defendant No.1 was never brought on
record. He submits that the issue as to whether the Suit
for partition is maintainable or not in the absence of
such sixth daughter is required to be kept open, in case,
this Court is inclined to set aside the impugned order
and remand the matter to the Appeal Court for disposal of
(6) 922-AO 7 of 2017
the Appeal on its own merits and in accordance with law.
Further, Mr.Sontakke Patil submits that the issue whether
the inclusion of Land Block No.306 in the original
partition Suit is necessary, is required to be kept open
so that respondent Nos.2 to 4 or other contesting
respondents in the appeal can urge that non-inclusion of
this Land Block No.306 in the original partition Suit was
a good ground for the dismissal of the Suit itself.
Mr.Sontakke Patil also agrees that the remand was also
necessary, but submits that all such issues are to be
kept open for consideration of the Appeal Court or
observations of this Court ought not to curtail the
rights of the respondents in the appeal to raise such
contention or defence. He submits that infact, the Trial
Court upon detail consideration of the evidence on
record, has quite rightly dismissed the Suit.
6) The records have been perused. Upon due
consideration of rival contentions, it is clear that it
(7) 922-AO 7 of 2017
is not a case where the remand was warranted.
7) There is no dispute that from out of six daughters
of defendant No.1, only five were brought on record upon
the demise of the defendant No.1 in the partition Suit.
It is for the Appeal Court to decide the effect of such
omission. Mr.Kulkarni's contention that estate was
substantially represented or Mr.Sontakke Patil's
contention that the Suit for partition had to fail for
non-joinder of necessary party, were the issues, which
are required to be decided by the Appeal Court. However,
there was no necessity for remand on this point. Further
as urged by Mr.Kulkarni, this is a risk, which the
appellant/plaintiff has to take. He submits that
ultimately, even if, the Suit is decreed, at the highest,
such decree may not bind sixth daughter. However, sixth
daughter of defendant No.1 has no objection to the
partition decree, if and when made. At this stage, it
will not be appropriate for the Court to rule out any of
(8) 922-AO 7 of 2017
the rival contentions. However, one thing is clear that
the Appeal Court was not justified in dealing with these
issues and contentions and simply remanded the matter to
the Trial Court. Again, on the inclusion of Land Block
No.306, it is open to the Appeal Court to consider
whether there is reference to such Land Block in the
pleadings or whether there is any other evidence on
record to suggest that this property was required to be
included in common hotchpotch. Further, it is for the
Appeal Court to decide whether the non-inclusion was
fatal to the Suit. All these questions as suggested by
Mr.Sontakke Patil can always be kept open and hereby kept
open for determination by Appeal Court itself without
remanding the matter to the Trial Court.
8) In the facts and circumstances of the present case,
the remand has been ordered to the satisfaction as to
whether any of the parameters described under Rule 23,
25, 25-A of Order 41 of the Code of Civil Procedure Code
(9) 922-AO 7 of 2017
were satisfied.
9) Accordingly, the order of remand is required to be
set aside and hereby set aside.
10) Regular Civil Appeal No.72 of 2014 is restored to
the file of the Appeal Court. The Appeal Court shall
dispose of the Appeal on merits and in accordance with
law.
11) The appeal is allowed to the aforesaid extent.
There shall be no order as to costs.
12) It is made clear that this Court has not examined
the merits of the matter, since, the only issue before
this Court was whether remand was justified or not.
Therefore, the observations in this order need not
influence the Appeal Court while disposing of the Appeal
on its own merits and in accordance with law.
( 10 ) 922-AO 7 of 2017
13) As the Appeal from Order is disposed of, Civil
Application for stay does not survive and is disposed of.
14) Parties to appear before the Appeal Court on
20.2.2018 at 11:00 a.m. and produce authenticated copy of
this order.
[M.S.SONAK, J.]
SPT/922-AO 7 of 2017
