Bombay High Court
Merchant Developers Thr. Its ... vs Chiman Narayan Taras(Since ... on 6 April, 2021
Bench: C.V. Bhadang
1-iast-96979-20 in sa-97-17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION (ST) NO. 96979 OF 2020
IN
SECOND APPEAL NO.97 OF 2017
Merchant Developers through its
partner Nuruddin Balubhai Merchant
Pune ..Applicant
IN THE MATTER BETWEEN
Shri Vilas Murlidhar Bhondave ..Appellant
V/s.
Chiman Narayan Taras (Since Decd)
through LRs. Smt. Janakabai Chiman
Taras and Ors. ..Respondents
----
Mr. P. K. Dhakephalkar, Sr. Advocate a/w. Mr. Chaitanya Nikte a/w.
Ms. Sneha Bhange for the Applicant.
Mr. A. A. Joshi a/w. Ms. Pranali Railkar for the Respondent Nos.10
to 15.
----
CORAM : C.V. BHADANG, J.
RESERVED ON : 12th MARCH 2021
PRONOUNCED ON : 6th APRIL 2021
P.C.
. This is an application filed by the applicant, Merchant
Developers, for deletion of the property more specifically described
and referred to as "Merchant Property" from the, suit property and
for a clarification, that any orders passed in the present second
appeal and/or any applications made thereunder, shall not affect the
Mamta Kale page 1 of 10
::: Uploaded on - 07/04/2021 ::: Downloaded on - 05/09/2021 12:34:15 :::
1-iast-96979-20 in sa-97-17
rights of the applicant in the 'Merchant property' and thirdly to
direct the appellants to make necessary amendment in the suit and
the pending appeal, thereby excluding the 'Merchant property' from
the properties which are subject matter of dispute.
2. Narayan Taras was the common ancester of the parties in the
appeal. Narayan had five sons namely Haribhau, Chiman, Vaman,
Kisan and Yeshwant and two daughters Shahubai and Reubai. Late
Manabai Vatekar claiming through the branch of Reubai filed Special
Civil Suit No.221/2002 before the learned Senior Civil Judge at
Pune, for partition and separate possession of several properties
belonging to Narayan Taras on the ground that they were the
ancestral and joint family properties of the parties.
3. The suit was resisted by the defendants, interalia on the
ground that the properties were self acquired properties of Narayan
and there was a partition during his lifetime amongst the sons.
4. Be that as it may, for the present, we are only concerned with
land Survey No.79/14 and 79/15, (excluding the portion acquired
for the purposes of the Pune Mumbai Express way). The aforesaid
lands are situated at Village Kiwale, Taluka Haveli, District Pune. In
Mamta Kale page 2 of 10
::: Uploaded on - 07/04/2021 ::: Downloaded on - 05/09/2021 12:34:15 :::
1-iast-96979-20 in sa-97-17
the application, the land Survey No.79/14 (excluding the acquired
portion) is referred to as "undisputed property No.1" while the land
Survey No.79/15 (excluding the acquired portion) is referred to as
"undisputed property No.2". Together both these properties are
referred to as the 'Merchant Property.' For the sake of convenience,
the properties are referred to accordingly.
5. It appears that Special Civil Suit No.221/2002 was decreed on
6/8/2010 in the following terms.
ORDER
1. The suit is partly decreed with proportionate
costs.
2. It is declared that the defendants No.1 to 4 and
legal heirs of deceased Haribhau Taras (defendants
No.5, 6 and 7, jointly) have 1/6 th + 1/28th share each
in the suit properties. So also, the legal heirs of
Reubai (plaintiffs and defendants No.9 to 18 jointly)
and defendant No.19 Smt. Janabai Reghunath Jadhav
have 1/28th share in the suit properties consisting field
S. Nos.79/6, 79/13, 79/15, 79/19, 79/20 of Mouje
Kiwale, District - Pune.
3. The precept be sent to Collector, Pune, who is
directed to depute any responsible officer for effecting
the partition of abovesaid agricultural land and for
delivering share therein to the plaintiffs vide Section
54 of the Code of Civil Procedure.
Mamta Kale page 3 of 10
1-iast-96979-20 in sa-97-17
4. An inquiry be held to mesne profit from the
institution of the suit till the delivery of the possession
to the Decree Holders under Order XX Rule 12(c) of
the Code of Civil Procedure.
5. Preliminary decree shall be drawn accordingly.
6. Feeling aggrieved, the plaintiff filed First Appeal No.280/2011
before this Court which was transferred to the District Court, on
account of enlargement of the pecuniary jurisdiction and was
registered as Regular Civil Appeal No.307/2012. Similarly, Taras
family filed First Appeal No.1639/2010 before this Court, which was
transferred to the District Court and was registered as Regular Civil
Appeal No.378/2012.
7. The learned District Judge decided both these appeals on
24/9/2016, according to which RCA No.378/2012 is allowed while
RCA No.307/2012 is dismissed. The net result is that RCS
No.221/2002 stands dismissed with costs. The said judgment has
given rise to four appeals, two each by the plaintiffs and the
defendant No.15. The Second Appeal No.97/2017 is filed by Vilas
Bhondave who is defendant No.15. The second appeals have been
admitted on 16/10/2018.
Mamta Kale page 4 of 10
1-iast-96979-20 in sa-97-17
8. Coming to the present application, it is the case made out that
in respect of land Survey No.79/14 Yashwant Taras and others had
executed a development agreement dated 5/7/2001 in favour of
Shaileja Baburao Shitole and a registered POA was executed in
favour of Baburao Shitole. In so far as the land Survey No.79/15 is
concerned, similar development rights were given by Kisan Taras
and others to Ajinath Vitthalrao Shitole by virtue of development
agreement dated 5/7/2001 and on the same date there was a
registered irrevocable POA executed by Kisan Taras and others in
favour of Baburao Shitole.
9. The applicant states that Baburao Shitole with the consent of
Shaileja and Ajinath Shitole has executed a separate development
agreement and registered POA in favour of the applicant on
29/3/2007 under which the applicant has been put in possession of
the suit property. In the meantime, Special Civil Suit No.221/2002
came to be filed by Late Manabai Vatekar. In short, the applicant
claims to have obtained development rights in respect of 27 / 28
share of the aforesaid properties from Yeshwant Taras and others
and Kisan Taras and others under the development agreements and
the POAs. Subsequently, the applicant has purchased the rights of
all the legal heirs of late Reubai, (including the appellants in the
Mamta Kale page 5 of 10
1-iast-96979-20 in sa-97-17
present appeal) under a registered sale deed dated 7/2/2014. In
short, according to the applicant, he has purchased the share of all
the contesting parties in so far as the 'Merchant Property' is
concerned, from the erstwhile owners. It is contended that pending
the appeal before the District Court, Yeshwant Taras, Kisan Taras
and their legal heirs had executed a confirmation deed dated
29/6/2016 in favour of the applicant. It is in these circumstances
that an application (Exh.50) was filed by Ganesh Watekar in RCA
No.307/2012, for deleting the 'Merchant Property' from the array of
the suit property. The said application remained undecided before
the learned District Judge. It is submitted that now after the
judgment of the First Appellate Court, the applicant has purchased
the remaining 1/28th share from Yeshwant Taras and Kisan Taras by
registered sale deed dated 18/2/2018. It is in these circumstances
that the deletion of the aforesaid property is sought for.
10. The respondent Vilas Bhondave (defendant No.15 in the suit)
has filed an affidavit in reply opposing the application. It is
contended that the applicant not being a party to the appeal has no
locus standi for filing the application.
Mamta Kale page 6 of 10
1-iast-96979-20 in sa-97-17
11. It is submitted that the Appellate Court has dismissed the suit
and therefore, the said respondent has filed the Second Appeal
feeling aggrieved by the fact that the judgment and decree passed by
the Trial Court granting share to him in some of the properties has
been quashed and set aside. The said respondent has thereafter set
out the details of the transactions pertaining to Survey No.79/14
and 79/15 in paragraph 13.1 to 13.6 of the affidavit-in-reply. It is
contended that the applicant has acquired interest over an area
admeasuring 41 Ares + 1.464 Ares out of 67 Ares of land bearing
Survey No.79/14 and over an area admeasuring about 42 Ares +
1.464 Ares out of 67 Ares of land bearing survey No.79/15. In
short, according to the respondent, applicant has not acquired rights
over the entire land bearing Survey No.79/14 and 79/15. It is
contended that the defendant Nos.1, 2 and 5 to 8 are not parties /
executors / consenting parties to any of the documents executed in
favour of the present applicant. It is contended that the Trial Court
had granted 1/6th + 1/28th share to the defendant Nos.1 to 4 and
the defendant Nos.5 to 7 jointly in both the concerned Survey
numbers which has been set aside by the Appellate Court. In short,
it is contended that in a suit for partition even the defendants stand
in the shoes of the plaintiff and the defendant No.15 having
challenged the Appellate Court decree, the application as framed
Mamta Kale page 7 of 10
1-iast-96979-20 in sa-97-17
and filed cannot be allowed and the same would cause serious
prejudice to the said respondent (defendant No.15).
12. I have heard the learned counsel for the parties. Perused
record.
13. It is necessary to note that the Survey No.76/14 and 76/15
which are subject matter of the present application are both
admeasuring 67 Ares each. Admittedly, certain portion of land from
both the survey numbers has been acquired for the purpose of
Mumbai Pune Highway. In respect of the remaining portion, which
is subject matter of the application, the applicant has acquired rights
in respect of the said portion by virtue of the documents as set out
above and which find reference in the reply filed by the defendant
No.15 in paragraph 13.1 to 13.6. None of the parties have ever
challenged the said title documents. It may be mentioned that there
was an application Exhibit 50 filed before the learned District Judge
for deletion of these properties from the subject matter of dispute.
However, the said application remained pending and the appeal
itself came to be disposed of. Be that as it may, as of today, the suit
stands dismissed which is subject matter of the Second Appeals
which have been admitted. Confining to the two properties, it
Mamta Kale page 8 of 10
1-iast-96979-20 in sa-97-17
cannot be said that the applicant has acquired any undivided
interest as such as claimed on behalf of the respondent Nos.10 to
15. It was strenuously urged by Mr. Joshi, the learned counsel for
the respondent Nos.10 to 15 that the applicant has allegedly
acquired undivided interest and in the absence of the rights having
been acquired in respect of specific portion, the applicant cannot
seek deletion as prayed. The contention in my considered view
cannot be accepted for the reason that excluding the acquired
portion, the entire remaining land from out of two survey numbers,
the applicant has acquired rights and interest therein. Even so far as
the locus standi of the applicant is concerned, it would appear that
the applicant has entered into the various transactions which are
executed during the pendency of the suit and the appeal and
thereafter. Thus, the applicant for all practical purposes has entered
into the shoes of the transferors / predecessors in title of the
applicant. It may be mentioned that except the respondent Nos.10
to 15 none others are opposing the application. In any event, in the
absence of any challenge to the documents under which the
applicant has acquired the right, title and interest to the property
('Merchant Property') which is subject matter of the present
application, the objection cannot be sustained. In that view of the
Mamta Kale page 9 of 10
1-iast-96979-20 in sa-97-17
matter, the application is allowed in terms of prayer clause (a) and
(b).
14. At this stage, the learned Counsel for the Respondent Nos.10
to 15 has prayed for stay of this order in order to enable the
Respondents to consider further course of action, if any. The prayer
is opposed on behalf of the Applicant.
15. However, considering the fact that the property has been
subject matter of the dispute since the year 2002, the order is hereby
stayed for a period of six weeks from today. No further extension
shall be granted.
C.V. BHADANG, J.
Mamta Kale page 10 of 10
