Bombay High Court
Digambar Bajirao Khobre vs Ramdas Bajirao Khobre And Ors on 23 August, 2021
Bench: V. V. Kankanwadi
26-sa-419-2012 & 499-2012.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
26 SECOND APPEAL NO.419 OF 2012
TUKARAM BABU KHOBRE DIED THR. LRS TUKARAM BABURAO
KHOBRE AND ORS
VERSUS
RAMDAS BABU KHOBRE AND ANR
...
Advocate for Appellant Nos.1A to 1E, 3A, 3B, 2 : Mr. Garud N.C.
Advocate for Respondent No.1 : Mr. Suresh Salgar h/f Mr. N V Gaware
...
WITH
SECOND APPEAL NO.499 OF 2012
DIGAMBAR BAJIRAO KHOBRE
VERSUS
RAMDAS BAJIRAO KHOBRE AND ORS
...
Advocate for appellant : Mr. A. M. Gholap
Advocate for respondent No.1 : Mr. Suresh Salgar h/f Mr. N. V. Gaware
Advocate for Respondent Nos.2A to 2E, 3 and 4A : Mr. N. C. Garud
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 23.08.2021
ORDER :-
. Both the appeals are arising out of the same judgment and decree
passed by both the Courts below. Respondent No.1 in both the appeals is
the original plaintiff, who had filed Regular Civil Suit No.569 of 2008 for
declaration, permanent injunction as well as mandatory injunction. It
was decided by learned 8th Joint Civil Judge Junior Division,
26-sa-419-2012 & 499-2012.odt
Ahmednagar on 27.08.2010. By the said decree, the document of
exchange executed before Sub Registrar, Ahmednagar on 19.05.2007
has been held to be void ab initio and was cancelled. Defendant Nos.1
to 4 were restrained from obstructing user of the road by the plaintiff
which is stated to be available from Gut No.39 to go to his house,
however, the relief of mandatory injunction was rejected. Original
defendant Nos.2 to 4 filed appeal i.e. Regular Civil Appeal No.283 of
2010 before the learned District Judge-7, Ahmednagar and the said
appeal came to be dismissed on 05.05.2012. Now, original defendant
Nos.2 to 4 had filed Second Appeal No.419 of 2012 and the original
defendant No.1 has filed Second Appeal No.499 of 2012.
2. Heard learned Advocate Mr. N. C. Garud for the appellants in
Second Appeal No.419 of 2012 and for respondent Nos.2A to 2E, 3 and
4A in Second Appeal No.499 of 2012, learned Advocate Mr. A. M.
Gholap for the appellant in Second Appeal No.499 of 2012, learned
Advocate for Mr. S. J. Salgar holding for learned Advocate Mr. N. V.
Gaware for respondent No.1 in both the appeals.
3. At the outset, it is to be noted that there was no dispute about the
existence of exchange deed dated 19.05.2007, however, according to the
plaintiff, it was got executed by playing fraud upon him. The question
26-sa-419-2012 & 499-2012.odt
here on the basis of the pleadings as well as evidence is as to whether
the plaint was complying with the provisions of Order 6 Rule 4 of the
Code of Civil Procedure and whether the fraud was proved. Both the
Courts below have given finding as proved and this, no doubt, is a fact
which was required to be proved by the plaintiff. Taking into
consideration whether there is compliance of Order 6 Rule 4, plaintiff
has taken a plea of illiteracy. Perusal of the document dated 19.05.2007
would show that even some of the parties to the document are illiterate.
According to the plaintiff, he was taken to Sub Registrar's office by
giving reason that they want to end the dispute regarding the road.
Plaintiff had examined only himself. Under such circumstance, whether
the interpretation and the other things involved around the contention
of the plaintiff is required to be considered.
4. Another fact to be noted is that plaintiff was claiming that the suit
property has been partitioned and defendant Nos.2 to 4, who are his
real brothers, were challenging that fact and the issue regarding proof
about partition was also raised. It has reflected in the exchange deed as
the plaintiff contends that defendant Nos.2 to 4 had no authority to
enter into any transaction. It was also contended by the plaintiff that
defendant No.1 had raised illegal construction towards the north side of
the suit property. Though the permanent injunction has been granted,
26-sa-419-2012 & 499-2012.odt
mandatory injunction has been rejected. Plaintiff had not filed any
appeal challenging the rejection of the part of the decree. Under such
circumstance, substantial questions of law are arising in this case,
especially in Second Appeal No.419 of 2012.
5. As regards Second Appeal No.499 of 2012 is concerned, it will
have to be stated that it is filed by original defendant No.1. He had not
challenged the decree passed by the learned Trial Court by a separate
appeal, but then learned Advocate for the appellant in this Second
Appeal submits that defendant No.1 i.e. appellant herein had raised
cross objections. In fact, whether the cross objections itself were
maintainable is a question and, therefore, the point regarding
maintainability of second appeal is required to be considered in the said
appeal itself. Both the appeals are, therefore, admitted. Following are
the substantial questions of law :-
I) Whether there was compliance under Order 6 Rule 4 of Code of
Civil Procedure by the plaintiff and in absence of such particulars
whether the suit was maintainable?
II) Whether the plaintiff had proved that the exchange deed dated
19.05.2007 was got executed from him by playing fraud and defendant
Nos.2 to 4 had no authority or right to be a party to the exchange deed?
III) Whether the plaintiff had proved partition between him and the
brothers i.e. defendant Nos.2 to 4 in the year 1988 and he had become
26-sa-419-2012 & 499-2012.odt
exclusive owner/possessor of the suit property?
IV) Whether Second Appeal No.499 of 2012 is maintainable in view
of the fact that the appellant therein had not filed separate appeal, but
had filed cross objections in the appeal filed by co-defendants and they
had no adverse interest inter se ?
V) Whether interference is required.
6. Issue notice to the respondents in both the cases, returnable on
04.10.2021. Learned Advocate Mr. Salgar holding for learned Advocate
Mr. Gaware waives notice for respondent No.1 in both the cases.
Learned Advocate Mr. N. C. Garud waives notice of respondent Nos.2A
to 2E, 3 and 4A in Second Appeal No.499 of 2012.
[SMT. VIBHA KANKANWADI, J.]
scm
