Apparao Manika Gavate And Another vs Nandu Apparao Gavate And Others
2021 Latest Caselaw 10681 Bom

                                                                          sa-305-2021.odt


                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              BENCH AT AURANGABAD

                              SECOND APPEAL NO.305 OF 2021
                         APPARAO S/O MANIKA GAVATE AND ANR
                                      VERSUS
                         NANDU S/O APPARAO GAVATE AND ORS
                                           ...
                     Mr. M. K. Deshpande, Advocate for appellants.
                  Mr. H. I. Pathan, Advocate for respondent Nos.1 to 3.
                                           ...
                                     CORAM        :   SMT. VIBHA KANKANWADI, J.

                                     DATE         : 10.08.2021

ORDER :-

.         Present appeal has been filed by original defendant Nos.1 and 2

challenging the judgment and decree passed by learned Adhoc District

Judge-1, Kandhar, Dist. Nanded in Regular Civil Appeal No.22 of 2016,

whereby the appeal filed by original plaintiff Nos.1 to 3 i.e. present

respondents came to be allowed on 05.03.2018. Original plaintiffs had

filed the said suit for partition and separate possession with mesne profit

bearing Regular Civil Suit No.77 of 2014 before the learned Civil Judge

Junior Division, Loha, Dist. Nanded. The said suit was dismissed on

02.03.2016 and, therefore, the original plaintiffs had filed the said

appeal, which came to be allowed.

2. Heard learned Advocate Mr. M. K. Deshpande for appellants and

learned Advocate Mr. H. I. Pathan for respondent Nos.1 to 3. In order to

cut short, it can be said that both of them have made submissions in

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support of their respective contentions.

3. At the outset, it is to be noted that the relationship between the

parties is not denied. Plaintiff Nos.1, 2 and defendant No.2 are real

brothers inter se. Plaintiff No.3 is the legally wedded wife of defendant

No.1 and plaintiff Nos.1, 2 and defendant No.2 are children of

defendant No.1 and plaintiff No.3. The suit property was land Block

No.387 admeasuring 2 H situated at village Penoor, Tq. Loha, Dist.

Nanded. According to plaintiffs, no partition had taken place and when

the plaintiffs decided to cultivate it, they were objected by the

defendants. Hence, suit for partition and separate possession.

Defendants resisted the suit by saying that the suit is bad for non

inclusion of all the ancestral properties. According to defendants, there

is one house property at village Penoor, which is in the name of

defendant No.1. Defendants had also come with the case that there was

a previous partition in which the property was allotted to defendant

No.1. The learned Trial Judge held that defendant No.1 has failed to

prove that the suit land is his separate property, however, the suit was

dismissed on the count that it is bad for non inclusion of all the ancestral

properties. The first Appellate Court took the alleged explanation given

by P.W.2 i.e. plaintiff No.3, in which it was stated that the said house is

not in existence. It was also considered that the application was

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produced on behalf of plaintiffs to call Gramsewak as witness, but that

was rejected. The learned first Appellate Judge has observed that he is

agree with the submissions on behalf of plaintiff that non inclusion of

property as a subject matter of the suit will not defeat the entire claim.

Further, it was also observed that the principles laid down in Order 2

Rule 2 of Civil Procedure Code would be applicable and it would

amount to that the plaintiff have relinquished portion of the claim.

Definitely, this position of law and whether non inclusion of an ancestral

property would result in dismissal of the suit will have to be decided

here. No doubt, a suit cannot be dismissed only on the count that some

of the property is not included or some of the parties is not added, but

then when such specific plea was raised and in spite of raising of such

plea without a proper explanation and proof, if the plaintiff proceeds,

then whether plaintiffs would get any benefit or whether their suit

would still can be decreed is required to be considered and, therefore,

substantial questions of law as contemplated under Section 100 of the

Code of Civil Procedure are arising in this case requiring admission of

the appeal. Hence, the Second Appeal is admitted. Following are the

substantial questions of law :-

I) Whether the first Appellate Court was justified in decreeing the suit of the respondents/plaintiffs, by ignoring the settled legal rule that a partition suit should embrace all the joint property is

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meager arbitrary nor technical, it is founded on sound and weighty reasons and if the rule were not recognized and firmly applied, multiplicity of litigation would be the inevitable result?

II) Whether the first Appellate Court was justified in decreeing the suit of the respondents/plaintiffs by ignoring a well settled dictum of the Apex Court in Kenchegowda Vs. Siddegowda, (1994) 4 SCC 294, wherein the Hon'ble Apex Court held that when all the joint family properties are not made the subject matter of the suit, nor the co-shares have been impleaded, the suit for partial partition is not maintainable?

III) Whether the first Appellate Court was justified in decreeing the suit by ignoring the law laid down by the Hon'ble Apex Court in 2009(9) SCC page-52 and the law laid down by this Court in 2004(4) Mh.L.J. page-653 wherein the Courts have held that, a suit for partial partition in respect of ancestral properties is not maintainable?

IV) Whether interference is required and whether the shares allotted by the first Appellate Court are legal and proper?

4. Issue notice to the respondent, returnable on 07.10.2021. Learned

Advocate Mr. H. I. Pathan waives notice for respondent Nos.1 to 3.

5. Call record and proceedings.

[SMT. VIBHA KANKANWADI, J.]

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