Bombay High Court
Shaikh Gulam Hussain Noormiya And ... vs Sk. Rashid. Sk. Haidar And Others on 23 January, 2018
Bench: M.S. Sonak
(1) 921- AO 97 of 2015
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
921 APPEAL FROM ORDER NO. 97 OF 2015
WITH
CA/1383/2015 IN AO/97/2015 WITH CA/971/2018 IN AO/97/2015
...
1. Shaikh Gulam Hussain s/o Sk. Noormiya,
(Died) Through L.Rs.
1-A) Shaikh Gulam Rasul s/o. Shaikh Gulam Hussain
Age: 44 years, Occu: Labour,
R/o. Mominpura Beed, Tq. & Dist. Beed.
1-B) Shaikh Gulam Tastagir s/o. Shaikh Gulam
Hussain
Age: 42 years, Occu: Labour,
R/o. Mominpura Beed, Tq. & Dist. Beed.
1-C) Shahnazbee s/o. Mohammad Hussain
Age: 55 years, Occu: Labour,
R/o. Mominpura Beed, Tq. & Dist. Beed.
1-D) Shahedabee w/o. Sk. Rabbani
Age: 52 years, Occu: Labour,
R/o. Mominpura Beed, Tq. & Dist. Beed.
1-E) Sajedabee w/o Sk. Kaleem
Age: 50 years, Occu: Labour,
R/o. Mominpura Beed, Tq. & Dist. Beed.
1-F) Nasarinbee w/o. Daud Shaikh
Age: 40 years, Occu: Labour,
R/o. Mominpura Beed, Tq. & Dist. Beed.
1-G) Faridabee w/o. Fakruddin Ansari,
Age: 44 years, Occu: Labour,
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(2) 921- AO 97 of 2015
R/o. Mominpura Beed, Tq. & Dist. Beed.
1-H) Rashida Begum w/o. Shaikh Gulam Hussain
Age: 65 years, Occu: Labour,
R/o. Mominpura Beed, Tq. & Dist. Beed.
2. Sk. Ibrahim s/o Motilal @ Jamaluddin,
(Died) Through L.Rs.
2-A) Sk. Jafar s/o Sk. Ibrahim,
Age: 44 years, Occu: Labour,
R/o. Mominpura Beed, Tq. & Dist. Beed.
2-B) Sk. Mustafa s/o Sk. Ibrahim
Age: 32 years, Occu: Labour,
R/o.As above.
2-C) Sk. Rafiq s/o Sk. Ibrahim,
Age: 30 years, Occu: Labour,
R/o. As above.
2-D) Hafizbi w/o Sk. Ibrahim
Age: 60 years, Occu: Household,
R/o. As above.
3. Sk. Ismail s/o Motilal @ Jamaluddin,
(Died) Through L.Rs.
3-A) Sk. Yakub s/o Sk. Ismail,
Age: 32 years, Occu: Labour,
R/o. Ashok Nagar, Beed.
3-B) Sk. Shakeel s/o Sk. Ismail,
Age: 27 years, Occu: Education,
R/o. As above.
3-C) Sk. Khamar s/o Sk. Ismail,
Age: 23 years, Occu: Education,
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(3) 921- AO 97 of 2015
R/o. As above.
3-D) Khaledabi w/o Sk. Ismail,
Age: 50 years, Occu: Service,
R/o. Ashti Tq. Ashti Dist. Beed. ... APPELLANTS.
(Orig. Plaintiffs)
VERSUS
1. Sk. Rashid s/o Sk. Haidar,
Age: Major,
R/o. Mominpura Beed, Tq. & Dist. Beed.
2. Sk. Hamid s/o Sk. Haidar,
Age: Major, R/o. As above.
3. Sk. Waheed s/o Sk. Haidar,
Age: Major, R/o. As above
4. Shaikh Bashir s/o Sk. Haidar,
Age: Major, R/o. As above
5. Sk. Osman s/o Sk. Mohmed,
Age: Major, R/o. As above
6. Sk. Wahed s/o Sk. Mohmed,
Age: Major, R/o. As above
7. Sk. Jalil s/o Sk. Mohmed,
Age: Major, R/o. As above
8. Sk. Khalil s/o Sk. Mohmed,
Age: Major, R/o. As above
9. Sk. Mohd. Hussain s/o Sk. Rahim,
Age: Major, R/o. As above
10. Sk. Jahur s/o Sk. Rahim,
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(4) 921- AO 97 of 2015
Age: Major, R/o. As above
11. Sk. Sattar s/o Sk. Rahim,
Age: Major, R/o. As above
12. Sk. Mazhar s/o Sk. Rahim,
Age: Major, R/o. As above
13. Sk. Rafat s/o Sk. Rahim,
Age: Major, R/o. As above
14. Ambadas s/o Dagdu Pawar,
(Died) Through L.Rs.
14-A) Indrabai w/o Ambadas Pawar,
Age: 65 years, Occu: Household,
R/o.Ashok Nagar, Beed, Dist.Beed.
15. Kantrao s/o Baburao Kakde,
Age: 36 years, Occu: Agriculture,
R/o. Telgaon Road, Beed Dist. Beed.
16. Punjaji s/o Vithoba Galdhar,
(Died) Through L.Rs.
16-A) Bapu s/o Punjaji Galdhar,
Age: 50 years, Occu: Labour,
R/o. Mominpura, Beed Dist. Beed.
16-B) Babasaheb s/o Punjaji Galdhar,
age: 47 years, Occ.:Labour,
R/o. As above
16-C) Bhagwan s/o Punjaji Galdhar,
age: 43 years, Occu: Labour,
R/o. As above
16-D) Raghunath s/o Punjaji Galdhar,
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(5) 921- AO 97 of 2015
age: 40 years, Occu: Labour,
R/o. As above
16-E) Pilabai w/o Punjaji Galdhar,
Age: 65 years, Occu: Labour,
R/o. As above
17. Kerba s/o Namdeo Shinde,
Age: 50 years, R/o. As above
18. Ganpa s/o Dadarao Dudhal,
(Died) Through L.Rs.
18-A) Babasaheb s/o Ganpat Dudhal,
Age: 42 years, Occu: Grossary Shop,
R/o. As above.
18-B) Sudhakar s/o Ganapat Dudhal,
Age: 40 years,
Occu.& R/o. As above.
18-C) Mandodaribai w/o Ganapat Dudhal,
Age: 60 years,
Occu.& R/o. As above.
19. Muktaram s/o Dadarao Dudhal,
Age: Major, R/o. As above
20. Devidas s/o Dadarao Dudhal,
Age: Major, R/o. As above
21. Dnyanoba s/o Dadarao Dudhal,
Age: Major, R/o. As above
22. Namdeo s/o Dadarao Dudhal,
Age: Major, R/o. As above
23. Mahadeo s/o Sitaram Dudhal,
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(6) 921- AO 97 of 2015
Age: Major, R/o. As above
24. Appa s/o Ranuji Jadhav,
(Died) Through L.Rs.
24-A) Machindra s/o Appa Jadhav,
Age: 40 years, Occu: Driver,
R/o. Ashok Nagar, Beed.
24-B) Kisnabai s/o Appa Jadhav,
Age: 60 years, Occu: Household,
R/o.As above
24-C) Ashabai s/o Bandu Jadhav,
Age: 30 years, Occu: Household,
R/o. As above
24-D) Vinayak s/o Bandu Jadhav,
Age: Major, R/o. As above
24-E) Ramesh s/o Bandu Jadhav,
Age: Major, R/o. As above
25. Iftekar Ahmed @ Ekbal s/o Sk. Ahmed,
Age: 50 years, Occu: Labour,
R/o. As above
26. Bhanudas s/o Kondiba Rohite,
Age: 65 years, Occu: Agriculture,
R/o. As above
27. Pandit s/o Maroti More,
Age: Major, R/o. As above
28. Laxman s/o Maroti More,
Age: Major, R/o. As above
29. Manohar s/o Maroti More (Died)
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(7) 921- AO 97 of 2015
Age: Major,
R/o. Ashok Nagar, Beed.
Through Legal Heirs
29-A) Deepak s/o Manohar More,
Age: 40 years, Occu: Agril,
R/o. Barshi Naka, Beed.
30) Sonaji s/o Dajiba Dhole, (Died)
Age: 70 years, Occu: Agriculture,
R/o. Ashok Nagar, Beed.
Through Legal Heirs
30-A) Bapu s/o Sonaji Bhole,
Age: 46 years, Occu: Agriculture,
R/o. Barshi Naka, Beed.
30-B) Vishnu s/o Sonaji Bhole,
Age: 44 years, Occu: Agriculture,
R/o. Barshi Naka, Beed.
30-C) Yadav @ Yedya s/o Sonaji Bhole,
Age: 42 years, Occu: Agriculture,
R/o. Barshi Naka, Beed.
30-D) Bapu s/o Sonaji Bhole,
Age: 39 years, Occu: Agriculture,
R/o. Barshi Naka, Beed.
31) Sk. Khaleq s/o Sk. Chotumiya,
Age: 35 years,
R/o. Barshi Naka, Beed.
32) Baburao s/o Nivrutti Mahakunde,
(Died) Through L.Rs.
32-A) Taramatibai w/o Baburao Mahakunde, (Died)
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(8) 921- AO 97 of 2015
32-AA) Sunil s/o Baburao Mahakunde,
Age: 46 years, Occu: Agriculture,
R/o. Mominpura Beed.
32-AB) Sanjay s/o Baburao Mahakunde,
Age: 40 years, Occu: Agriculture,
R/o. Mominpura Beed.
33) Mahanandabai w/o Raghunath Humbe,
Age: 35 years, R/o. As above
34) Saluji s/o Ganpat Humbe,(Died)
Age: 55 years, Occu: Agriculture,
Through Legal Heirs,
34-A) Sitabai Saluji Gore (@ Humbe),
Age: 60 years, Occu: Agriculture,
R/o. Mominpura Beed.
34-B) Abasaheb Saluji Gore (@ Humbe),
Age: 40 years, Occu: Agriculture,
R/o. Mominpura Beed.
35) Abdul Matin s/o Abdul Rahim,
Age: 30 years, R/o. As above
36) Abdul Baseed s/o Gulam Mohamadkhan, (Died)
Age: 50 years,
R/o. Juna Bazar, Beed, Dist. Beed.
Through Legal Heirs
36-A) Abdul Jahed s/o Abdul Based,
Age: 45 years, Occu: Agriculture,
R/o. Mominpura, Beed.
36-B) Abdul Naher s/o Abdul based,
Age: 40 years, Occu: Agriculture,
R/o. Mominpura, Beed.
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(9) 921- AO 97 of 2015
37) Vishwambhar s/o Sakharam Gore,
Age: Major,
R/o. Ashok Nagar, Dist. Beed.
38) Digambar s/o Sakharam Gore,
Age: Major,
R/o. Ashok Nagar, Dist. Beed.
39) Khaled s/o Abdulla Timbode,
Age: 25 years, Occu: Business,
R/o. Mominpura Beed, Dist. Beed.
40) Nazir Mohammad Janmohammad
(Died) Through L.Rs.
40-A) Shaikh Feroz s/o Nazir Mohammad
Age: 30 years, Occu: Labour,
R/o. As above
40-B) Shaikh EFeroz s/o Nazir Mohammad
Age: 27 years, Occu: Labour,
R/o. As above ... RESPONDENTS.
(Orig. Defendants)
...
Advocate for Appellants : Mr.G.K.Thigale (Naik)
Advocate for Respondent Nos.17, 24A to 24E, 25 To 28 and
34A to 34B. : Mr.V.P.Latange
Advocate for Respondent No.14-A : Mr.C.V.Ddharurkar
...
...
Appeal against respondent No.37 is dismissed vide Court's
Order dated 15.4.2017.
...
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( 10 ) 921- AO 97 of 2015
CORAM : M.S.SONAK, J.
DATE : 23rd January 2018
ORAL JUDGMENT:-
1) Heard Mr.G.K.Naik-Thigale learned counsel for the
appellants, Mr.R.B.Shingare learned counsel, who holds
for Mr.V.P.Latange learned counsel for respondent Nos.17,
24-A to 24-E, 25 to 28, 34-A to 34-B and Mr.C.V.Dharurkar
learned counsel for respondent Nos.14-A.
2) This appeal challenges the order dated 14.7.2014 by
which the Appeal Court has remanded the matter to the
Trial Court for re-trial.
3) The only reasoning on the basis of which such remand
is ordered is to be found in paragraph Nos.19 and 20 of
the impugned order, which read as follows:
"19. Admittedly the suit was dismissed and the
defendant no.14/A was not allowed to contest the
matter on her failure to file written statement
within the prescribed period. Now she has been
allowed to file written statement to defend the
( 11 ) 921- AO 97 of 2015
allegations made against her and to establish her
right in respect of the disputed property. She is
required to lead evidence regarding her ownership in
respect of suit property on the basis of her
pleadings. She may be required to cross examine the
plaintiffs and their witnesses for this purpose.
Considering the involvement of rights of the parties,
the likely issues to be framed and need of recording
evidence, I am of the opinion that the matter should
be remanded to the learned Trial Court for retrial to
record evidence afresh after framing issues as per
pleadings and the controversy between the parties.
In the light of these circumstances the impugned
Judgment and decree cannot be sustained. It may need
interference by this Court to set it aside.
Accordingly, it is.
20. It is the contention of the learned Adv.Opalkar
that if the matter is remanded for retrial, there
should be time limit for its disposal as the suit was
filed in the year 1995. Secondly, it is argued that
defendant no.14/A is indulging in construction work
on disputed land which should not go further during
the pendency of Suit. I accede to both the
contentions to fix the schedule for deciding the suit
( 12 ) 921- AO 97 of 2015
within the period of four months from the date of
fixed by this Court for appearance of the parties
before the learned Trial Court. It is a matter of
fact that due to default on the part of concerned
defendant her written statement was not filed within
stipulated time. Had she filed the written statement
immediately after filing appeal as directed by the
Hon'ble High Court in writ petition, the matter would
have been remanded in the year 2008 itself. However,
she took another six years to file written statement,
for this she cannot be allowed to take benefit of
remand of matter without putting restrictions on her
to carry out construction on the disputed land. I
therefore, restrain her from carrying out further
construction on the suit site till the decision of
the suit by the learned Trial Court."
4) For the aforesaid, it is apparent that only the
reason for remand is to afford respondent No.14-A
opportunity to contest the matter. There is no necessity
to go into the issue as to whether this was sufficient
ground to order remand. This is because there are
certain subsequent developments in relation to respondent
( 13 ) 921- AO 97 of 2015
No.14-A.
5) Mr.C.V.Dharurkar learned counsel who now appeared
for respondent No.14-A has placed on record a purshis
filed by the appellants (original plaintiffs) before the
Trial Court in pursuance of remand seeking leave to
withdraw the suit itself against respondent No.14-A. The
learned counsel for the appellants also confirms that
such a purshis has indeed been filed. Learned counsel for
the appellant as well as respondent No.14-A point out
that since further proceedings before the Trial Court
have been stayed by this Court, the Trial Court was not
in a position to make any orders on the purshis. He
submitted that they will have no objection if this Court
itself permits the withdrawal of the suit as against
respondent No.14-A. Accordingly, on the basis of purshis
dated 9.1.2017, the certified copy of which is placed on
record, the appellants (original plaintiffs) are granted
leave to withdraw the suit as against respondent No.14-A
( 14 ) 921- AO 97 of 2015
i.e. defendant No.14-A in the original Suit. The
original Suit, therefore, stands dismissed as withdrawn,
as against defendant No.14-A.
6) Since, the entire reasoning in support of the remand
was to enable the defendant No.14-A to make good its
defence and since, such reason no longer survives on
account of aforesaid subsequent development, the impugned
order will have to be set aside. Rest matter will have
to be remanded to the Appeal Court for disposal of Appeal
on merits. From the impugned order, it is clear that
the Appeal Court has not touched the merits of the
matter.
7) In the aforesaid circumstances, this appeal is
allowed.
8) The impugned order is set aside.
( 15 ) 921- AO 97 of 2015
9) The Regular Civil Appeal No.3 of 2008 is restored to
the file of the Appeal Court. The Appeal Court is
directed to dispose of such Civil Appeal on its own
merits and in accordance with law as expeditiously as
possible and in any case within a period of one year from
the date of production of authenticated copy of this
order.
10) It is made clear that this Court also has not
touched the merits of the case, and therefore, all
contentions of all the parties in appeal are kept open
for determination by the Appeal Court in accordance with
law and on its own merits.
11) The parties to appear before the Appeal Court on
20.2.2018 at 11:00 a.m. and produce an authenticated copy
of this order.
12) In case any of the parties do not appear on the same
( 16 ) 921- AO 97 of 2015
date, the Appeal Court to cause notices to be served upon
them.
13) As the appeal is allowed, the Civil Application
No.1383 of 2015 does not survive and is accordingly
disposed of.
14) As far as the Civil Application No.971 of 2018 is
concerned, liberty is granted to the appellants herein to
file similar application before the Appeal Court, which
shall again decide such application, if taken out, on its
own merits and in accordance with law. Accordingly, the
Civil Application is disposed of.
[M.S.SONAK, J.]
SPT/921- AO 97 of 2015
