Bombay High Court
Sahebu Dharmu Shinde (Since ... vs Jagannath Mithu Shinde And Ors on 5 January, 2018
Bench: Dr. Shalini Phansalkar-Joshi
Dixit
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11143 OF 2017
Sahebu Dharmu Shinde (Since Deceased), ]
Through LR : Tanaji Sahebu Shinde, ]
Age - 55 years, Occ. Agriculture, ]
R/at 455, Karanje Peth, Satara ] .... Petitioner
Versus
1. Jagannath Mithu Shinde, ]
Age - 48 years. ]
]
2. Vilas Mithu Shinde (Mali) (Since Deceased), ]
Through LRs : ]
]
2A. Malan Vilas Shinde, ]
Age - 58 years, Occ. Agriculturist. ]
]
2B. Jaywant Vilas Shinde, ]
Age - 32 years, Occ. Agriculturist. ]
]
Both residents of Molacha Odha, ]
Taluka and District : Satara. ]
]
2C. Jyoti Suresh Borate, ]
Aged - 30 years, Occ. Household, ]
R/of Mhaswe Road, Datta Colony, ]
Karanje Tarf, Satara. ]
]
3. Pandurang Babu Shinde (Mali), ]
(Since Deceased), Through LRs : ]
]
3A. Suman Pandurang Shinde, Age : 70 yrs. ]
]
3B. Vaibhav Pandurang Shinde, Age : 48 yrs. ]
]
Both residing at 468, Karanje Peth, ]
Taluka and District : Satara. ]
]
3C. Kalpana Dashrath Jadhav, ]
Age - 54 years, Occ. Household, ]
Residing at Aadarki BK, ]
Taluka - Phaltan, Dist. Satara. ]
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3D. Suman Jagganath Bhosale, ]
Age : 52 years, Occ. Household, ]
R/at 307/25, Raghunathpura, ]
Karanje Peth, Satara. ]
]
3E. Vijaya (Shobha) Vijay Bhujbal, ]
Age - Adult, ]
R/at Kondve, Tal. & Dist. Satara. ]
]
4. Ananda Babu Shinde (Mali), Age : 70 yrs. ]
]
5. Ramchandra Babu Shinde (Since Deceased), ]
Through LRs : ]
]
5A. Aruna Ramchandra Shinde, ]
Age : 55 yrs., Occ. Agriculturist. ]
]
5B. Sunil Ramchandra Shinde, ]
Age : 39 yrs., Occ. Agriculturist. ]
]
Both are residing at 468, Karanje Peth, ]
Taluka and District : Satara. ]
]
5C. Sushma Sharad Raskar, ]
Age - 41 years, Occ. Household, ]
R/at Angapur, Tasgaon Nazik, ]
Taluka & District : Satara. ]
]
6. Shankar Ganpati Shinde ]
]
7. Balu Kashaba Shinde (Mali), Age : 82 yrs. ]
]
8. Dattu Kushaba Shinde ]
]
9. Sadashiv Bahiru Shinde ]
] Respondent Nos.1 to 10
10. Vithu Govinda Shinde (Mali), ] Original Defendants
]
All Agriculturists ]
Nos.1 & 2 R/of Molacha Odha, Satara. ]
Nos.3 & 5 R/of 471, Karanje Peth, Satara, ]
Nos.4 & 13 R/of Reviwar Peth, Wai, Satara ]
No.6 R/of Phulenagar, Wai, Dist. Satara ]
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Nos.7 & 8 R/of 465, Karanje Peth, Satara ]
No.9 R/of Shahabag, Phulenagar, Wai, Satara ]
No.10 R/of Kalambe, Tal. & Dist. Satara ]
]
11. M/s. Jadhav Kortil Associates, ]
Through its Partners : ]
]
11A. Kishor Madhukar Jadhav, ]
Age : Major, Occ. Builders, ]
R/at 8, Gadkar Ali, Near Badami Vihir, ]
Satara. ]
]
11B. Kavita Hemant Jadhav, ]
Age : Major, Occ. Builders, ]
R/at 8, Gadkar Ali, Near Badami Vihir, ]
Satara. ]
]
11C. Hema Satoish Kortil, ]
Age : Major, Occ. Builders, ]
R/at Swami Gruh Sankul, ]
Karanje Tarf, Satara. ]
]
11D. Preeti Mangesh Jadhav, ]
Age : Major, Occ. Builders & Agriculture, ]
R/at 8, Gadkar Ali, Near Badami Vihir, ]
Satara. ]
]
12. Heramb Builders and Developers, ]
Through its Partners : ]
]
12A. Jaywant Mahadev Salunkhe, ]
Age : 37 yrs., Occ. Developers & Agriculture, ]
R/at Sadar Bazar, Satara. ]
]
12B. Abhijeet Shrirang Kirdat, ]
Age : 36 yrs., Occ. Agriculturist, ]
R/at Daulatnagar, Karanje, Satara. ]
]
12C. Trupti Rajendra Bahulekar, ]
Age : 42 yrs., Occ. Developers & Agriculture, ]
R/at 106-C/2, Somwar Peth, Satara. ]
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12D. Padmaja Kishor Jadhav, ]
Age : 46 yrs., Occ. Developers & Agriculture, ]
R/at A-201/6, Sales Society, ]
Katraj, Pune - 411 046. ]
]
13. Dashrath Rangoba Jadhav, ]
Age : Major, Occ. Agriculture, ]
R/at Post Adarki Budruk, Tal. Phaltan, ]
Dist. Satara. ]
]
14. Sunil Tukaram Nevase, ]
Age : 48 years, Occ. Agriculture, ]
R/at Chatrapati Shahu Market, ]
Kirana Malache Dukan, Satara. ]
]
15. Satish Tukaram Nevase, ]
Age : 45 years, Occ. Agriculture, ]
R/at Chatrapati Shahu Market, ]
Kirana Malache Dukan, Satara. ]
]
16. Kalpana Dashrath Jadhav, ]
Age : 50 years, Occ. Agriculture, ]
R/at Post Adarki Budruk, ]
Taluka - Phaltan, Dist. Satara. ]
]
17. Yamuna Tukaram Nevase, ]
Age - 45 years, Occ. Housewife, ]
R/at Chatrapati Shahu Market, ] Resp. Nos.11 to 17
Kirana Malache Dukan, Satara. ]Proposed Respondents
]
18. Yeshwant Sahebu Shinde, ]
Age : 60 years, Occ. Agriculture. ]
]
19. Ashok Sahebu Shinde, ]
Age : 56 years, Occ. Agriculture. ]
]
20. Shakuntala Vitthal Malakneer, ]
Age : 79 years, Occ. Agriculture. ]
]
21. Surekha Sambhaji Mane, ]
Age : 58 years, Occ. Agriculture. ]
]
Respondent Nos.18 and 19 residing at ]
463, Karanje Peth, Satara. ]
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Respondent No.20 R/at Ulhasnagar, ]
Kurla Camp, Kansai Road, Dist. Thane. ]
]
Respondent No.21, R/of Lonand ]
(Kurancha Mala), Tal. & Dist. Satara. ] .... Respondents
Mr. Siddharth Chandrashekhar Wakankar for the Petitioner.
Mr. Akshay Uttam Chikhale for Respondent Nos.1, 2A, 2B and 3A to 3E.
Mr. P.B. Shah, i/by Mr. K.P. Shah, for Respondent Nos.11, 11A to 11D,
12 and 12A to 12D.
CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.
DATE : 5 TH JANUARY 2018.
ORAL JUDGMENT :
1. Rule. Rule is made returnable forthwith. Heard finally, at the stage
of admission itself, by consent of learned counsel for the Petitioner and
learned counsel for the Respondents.
2. By this Petition, filed under Article 227 of the Constitution of India,
the Petitioner is challenging the order dated 30 th August 2017 passed by
the District Judge-2, Satara, below "Exhibit-55" in Regular Civil Appeal
No.69 of 1997. The application at "Exhibit-55" was filed by the
Petitioner to implead the purchasers of the suit property as 'Proposed
Respondent Nos.11 to 17' on the count that, they have purchased the
suit property during pendency of the Appeal. The application was
strongly resisted by the Respondents and, ultimately, it came to be
rejected by the impugned order.
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3. The submission of learned counsel for the Petitioner is that, the
Suit filed by the Petitioner is for partition and separate possession of his
share in the suit property and as Proposed Respondent Nos.11 to 17
have purchased the suit property during pendency of the Appeal, their
impleadment in the Suit and in the Appeal is very much necessary, as
without their joining in the lis, the controversy in the matter cannot be
resolved completely. Secondly, it is also submitted that, it is in the
interest of the purchasers themselves that they should be joined in the
Suit, so that, ultimately, their rights will not be affected, if the Suit is
decreed and the Petitioner is granted his separate share by way of
partition in the joint family properties.
4. Thus, according to learned counsel for the Petitioner, the Appellate
Court should have allowed the Petitioner's application for impleadment
of Proposed Respondent Nos.11 to 17; however, the Appellate Court has
rejected the said application without assigning any valid reasons
therefor; hence, the impugned order needs to be quashed and set aside.
5. Per contra, learned counsel for the Respondents has supported the
said order by submitting that, the application filed before the Appellate
Court was suppressing the material fact that, the Sale Deeds creating
third party interests in the suit property, which Petitioner wants to
challenge, were not executed during the pendency of the Suit or the
Appeal, but, they were executed after the dismissal of the Suit.
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Respondent Nos.11 to 16 are the subsequent purchasers. Hence, they
cannot be the necessary parties to the Suit or the Appeal arising
therefrom.
6. In order to understand the controversy raised in this Writ Petition,
it would be necessary to give a gist of chronological events of this
litigation. The Petitioner is the Original Plaintiff, who had filed Regular
Civil Suit No.80 of 1989 for declaration that, the Sale Deed dated 16 th
September 1930 and Gift Deed dated 7th February 1940 are not binding
on his share and further for the relief of partition and separate
possession of his share in the suit properties. The Suit came to be
dismissed on 11th October 1996. The Petitioner then preferred the
Appeal bearing Regular Civil Appeal No.69 of 1997, which came to be
dismissed for default on 21st January 2004. The Petitioner, therefore,
filed an application for restoration of the Appeal, bearing Restoration
Petition No.82 of 2013, which also came to be dismissed on 4 th January
2015. Thereafter, Petitioner approached this Court by filing Writ
Petition No.9439 of 2015, which was allowed by this Court directing the
First Appellate Court to restore the Appeal. The Respondents then filed
Review Petition No.1297 of 2016, which came to be dismissed on 3 rd
February 2016. Then the Respondents approached the Hon'ble Supreme
Court by filing Writ Petition No.9439 of 2015, for special leave to appeal,
and it came to be dismissed by order dated 11th July 2017 with a
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direction to the Appellate Court to decide the Appeal as expeditiously as
possible and not later than a period of six months.
7. As per the case of the Petitioner, during pendency of the Writ
Petition before the High Court, Respondent Nos.3 and 4 had alienated
some portion of the suit land, bearing Survey No.71/8, in favour of
Respondent Nos.11 and 12 by virtue of separate Sale Deeds dated 14 th
August 2015 and 13th August 2015, respectively. Similarly, Respondent
No.3 and his heirs alienated some portion of the house property, bearing
C.T.S. No.464, by virtue of the registered Sale Deed dated 14 th August
2015 and, therefore, it was contended that, these purchasers are the
necessary parties to the Suit and the Appeal, as without their joining,
the Suit for partition cannot be decided finally; moreover, it is their
interest, which need to be protected.
8. However, as rightly submitted by learned counsel for the
Respondents and as held by the learned Appellate Court, the Petitioner
has not disclosed the material facts in the application, because the
proposed purchasers are not the original purchasers, but, they are the
subsequent purchasers. The original purchasers are, Atul Dattu Shinde,
in whose favour the Sale Deed in respect of the house property was
executed by Respondent No.3 on 27th December 2007; whereas, the sale
transaction in respect of the land bearing Survey Nos.71/8 and 71/3 had
taken place by Respondent No.3B-Vaibhav Pandurang Shinde in favour
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of Dashrath Rangoba Jadhav and Sunil Tukaram Newase on 24 th July
2009. However, they are not made parties to the Suit. Thus, when the
first sale transactions took place in the year 2007 and 2009, admittedly,
the Suit was not pending, as it has already been dismissed on 11 th
October 1996, and the Appeal was also dismissed in default on 21 st
January 2004. The application for restoration of Appeal was filed in the
year 2013. Thus, during the first sale transactions, lis was not pending
between the parties. Hence, purchasers of the subsequent sale
transactions cannot be considered as necessary parties to the Suit or to
the Appeal; especially when first purchasers are not impleaded in the
Suit and the Sale Deeds executed in their favour are not challenged.
9. The learned Appellate Court has also considered the fact that the
Appeal is only against Respondent Nos.1 to 5, as it is already dismissed
as against Respondent Nos.6 to 10. Further, the learned Appellate Court
has also considered that Respondent No.17-Yamuna Tukaram Nevase is
not the purchaser, but, she is the sister of Respondent Nos.15 and 16
and she was not made party to the Suit or Appeal. Therefore, to fill up
the lacunae and implead her as party, she is shown in the application as
'purchaser'.
10. Thus, whether the transactions are hit by the principle of lis
pendens or otherwise, the fact remains that, in a Suit for cancellation of
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the Gift Deed or Sale Deed and for partition, the subsequent purchasers,
when the earlier purchasers are not joined, cannot be the necessary
parties to the Suit. The share of the Petitioner, if his suit is decreed, can
be adjusted in the remaining joint family properties. There is absolutely
no rule of law that, subsequent purchasers have to be joined in a Suit for
partition. If at all they are interested to protect their interest, then, they
may apply, but, so far as the present case is concerned, on the face of it
also, their interests do not appear to be affected, as they have purchased
the property from the purchasers, whose transactions are not hit in any
way by the principle of lis pendens.
11. As regards the authorities relied upon by learned counsel for the
Petitioner, that of Thomson Press (India) Limited Vs. Nanak Builders
and Investors Private Limited and Ors., (2013) 5 SCC 397 , the facts of
the said case reveal that, the Suit therein was filed for specific
performance of the Agreement and in the light thereof, it was held that,
transferee pendente lite may be included in such Suit.
12. As against it, in the present case, the Suit being for partition and as
the Petitioner's share in the joint family properties can be adjusted in
the remaining properties, it is not going to necessarily affect either the
interest of the Petitioner or that of the Proposed Purchasers. Having
regard to the entire chronology of the events, which the Appellate Court
has also discussed in detail, clearly reveal that, it is the total absence of
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diligence on the part of the Petitioner and suppression of material facts,
which has resulted into, rightly, dismissal of his application.
13. The impugned order, therefore, passed by the Appellate Court does
not call for any interference. The Writ Petition, hence, stands dismissed.
Rule is discharged.
14. At the request of learned counsel for the Petitioner, it is made clear
that, whatever observations made here-in-above are only for the
purpose of deciding the present Writ Petition and the Appellate Court is
not to be influenced by the same, as the Appeal will have to be decided on
its own merits.
[DR. SHALINI PHANSALKAR-JOSHI, J.]
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