Bhaskar Keshav Kasar vs Sanjay Abhimanyu Kasar Deceased ...
2021 Latest Caselaw 11232 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                     928 SECOND APPEAL NO.301 OF 2021

                     BHASKAR KESHAV KASAR
                             VERSUS
 SANJAY ABHIMANYU KASAR DECEASED LRS. JAYASHRI AND OTHERS
                                ...
          Advocate for Appellant : Mr. Kulkarni Mukul S.
      Advocate for Respondent No.2 : Mr. S. S. Ladda (Absent)
                                ...


                                    CORAM :   SMT.VIBHA KANKANWADI, J.
                                    DATE :    18-08-2021.

ORDER :

1. Heard learned Advocate appearing for the appellants. Learned Advocate Mr.Ladda for respondent No.2 who had filed caveat is absent.

2. Learned Advocate for the appellant who is the original plaintiff submits that there is absolutely no application of mind by the First Appellate Court in deciding the appeal. The Judgment is verbatim to the Judgment of the learned Trial Judge. Complete paragraphs have been reproduced and real controversy was not touched at all.

3. Perusal of the paper book of the First Appellate Court would show that the present appellant/ plaintiff filed the suit for partition and it appears that though in a scanty way it has been stated that there was a partnership firm and, thereafter, it was also dissolved by a document, yet it appears that it was contended that the suit properties are the joint family properties in which the plaintiff has 1/3rd share.

2 SA 301-2021

4. Further it appears that the defendants had filed written statements as well as counter claim. Perusal of the same prima facie gives an impression that they are also not coming under the Partnership Act. It can be seen that the learned Trial Judge had also not framed any issue which would be around the partnership as alleged or the alleged dissolution deed. The evidence shows that questions were asked in respect of partnership firm and its dissolution. Under such circumstances, whether both the parties could have claimed, that is the plaintiff in the suit and defendants in the counter claim under Hindu Law or they should have gone under the Partnership Act. Therefore, prima facie there is scope to frame substantial questions of law, however, the picture would be more clear after hearing the respondents. Since the learned Advocate for respondent No.2 who had filed the caveat is absent, now respondent No.2 is also required to be summoned.

5. Issue notice to the respondents, to be made returnable on 16-09-2021.

6. Call for record and proceedings.

(SMT. VIBHA KANKANWADI) JUDGE

vjg/-