Bombay High Court
Alka Namdeo Kadu Deceased Through ... vs Mandabai Revannath Gade And ... on 13 August, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
923 SECOND APPEAL NO.590 OF 2019
SOU. ALKA NAMDEO KADU, DIED THR LRS NAMDEO AND OTHERS
VERSUS
SOU. MANDABAI W/O REVANNATH GADE AND ANOTHER
...
Mr. A.R. Borulkar, Advocate for appellants
Mr. V.V. Tarde, Advocate for the respondent No.1
Mr. R.V. Naiknaware, Advocate for the respondent No.2
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 13th AUGUST, 2021.
ORDER :
1 Present appeal has been filed by the original defendants
challenging the concurrent Judgment and Decree.
2 Present respondent No.1 is the original plaintiff, who had filed
Regular Civil Suit No.179/2009 before Joint Civil Judge Junior Division,
Rahuri for declaration and injunction. The declaration that was sought was
that the defendant No.1 by illegal and wrongful means got Regular Civil Suit
No.89/2007 compromised and decreed in respect of house property
Nos.1940 and 1941, which were situated in Gat No.346/1 of village Rahuri
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(Bk), Tq. Rahuri, Dist. Ahmednagar. The present respondent No.2, the
Municipal Council was made party to the said suit i.e. Regular Civil Suit
No.179/2009, restraining it from entering the name of defendant No.1 in the
assessment extract of the house properties, on the basis of decree drawn in
Regular Civil Suit No.89/2007. The said suit has been decreed by Joint Civil
Judge Junior Division, Rahuri on 21.10.2011 and the appeal filed by the
present appellants i.e. Regular Civil Appeal No.445/2011 has been dismissed
by learned Adhoc District Judge-2, Ahmednagar on 23.10.2018.
3 Heard both sides. In order to cut short, it can be said that
learned Advocate for the appellant submitted that substantial questions of
law are arising in this case, whereas the learned Advocate for the respondent
No.1 supported the reasons given by the Courts below.
4 It is to be noted from the Judgment passed by the learned Trial
Judge that a specific issue was framed that, "Does plaintiff prove that the
defendant No.1 got Regular Civil Suit No.89/2007 decreed by wrongful and
illegal means ?" It was answered, "In the affirmative". Certified copy of
compromise decree drawn in Regular Civil Suit No.89/2007 was filed at
Exh.42. Important point to be noted is that original plaintiff-present
respondent No.1 was not a party to Regular Civil Suit No.89/2007. Plaintiff
had come with a case that she is the owner and possessor of Sy.No.346/1.
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House property Nos.1940 and 1941 are situated in the said survey number,
which are stated to be belonging to her. It was the further case of the
plaintiff that those house properties were shown in the name of one Shridhar
Damodar Modhe in the Municipal record. Said Shridhar expired in 1997 and
was not residing in the suit property. He was residing at village Taklimiya
since last about 40-50 years prior to his death. He had no right, title or
interest over the house property. However, taking disadvantage of the name
of said Shridhar Modhe, the said suit was filed and defendant No.1 got
compromised decree. Said Shridhar Modhe was the father of defendant
No.1. Said Regular Civil Suit No.89/2007 was filed by the brother of
defendant No.1 for partition and separate possession of their ancestral
properties. Initially, the house property Nos.1940 and 1941 were not
included in the hotch pot, however, by way of amendment they have been
included and then the compromise has taken place. According to the
plaintiff, in this case those properties could not have been included as suit
property in that suit i.e. Regular Civil Suit No.89/2007.
5 Important point to be noted is that none of the parties have
explained, as to why the other party to Regular Civil Suit No.89/2007 have
not been made as party to this suit. Though the said contention has not been
taken by defendant in written statement; yet it ought to have been seen by
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both the Courts below that when declaration is sought regarding setting aside
the said decree, may be in respect of a particular property; yet, those parties
are necessarily to be included in the present suit. Merely because in that
compromise that property has been given to the share of defendant No.1, it
cannot be stated that she has got it to her share fraudulently. We cannot keep
aside the role played by the other party to Regular Civil Suit No.89/2007 in
arriving at the compromise. Therefore, this Court feels that those other
parties to Regular Civil Suit No.89/2007 are necessary parties to the suit, and
therefore, by setting aside both the decrees the matter deserves to be
remanded to the Trial Court, with direction to add the other parties to
Regular Civil Suit No.89/2007, to be added as defendants in this suit.
Therefore, at the admission stage itself, the Second Appeal is disposed of with
following directions. Hence, following order.
ORDER
1 Second Appeal is hereby partly allowed.
2 Judgment and Decree in Regular Civil Suit No.179/2009 passed
by Joint Civil Judge Junior Division, Rahuri on 21.10.2011 and Judgment
and Decree Regular Civil Appeal No.445/2011 passed by Adhoc District
Judge-2, Ahmednagar on 23.10.2018 are hereby set aside.
3 Regular Civil Suit No.179/2009 is restored on the File of Joint
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Civil Judge Junior Division, Rahuri, Dist. Ahmednagar.
4 Present respondent No.1 i.e. original plaintiff is directed to add
the other parties to Regular Civil Suit No.89/2007 as 'defendants' and then
the learned Civil Judge Junior Division to proceed further with the matter, by
summoning those added defendants as well as allowing all the parties to lead
evidence, if they desire, and then matter to be disposed of on its merits, as
per law.
5 Parties to appear before Trial Court on 13.09.2021.
( Smt. Vibha Kankanwadi, J. )
agd
