Uttam Shripati Bhade Deceased ... vs Bhimabai Sampat Jadhav And Others
2021 Latest Caselaw 2334 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                         948 SECOND APPEAL NO.46 OF 2021
                         WITH CA/1300/2021 IN SA/46/2021


                         UTTAM SHRIPATI BHADE DECEASED
                       LAXMIBAI UTTAM BHADE AND OTHERS
                                       VERSUS
                     BHIMABAI SAMPAT JADHAV AND OTHERS
                                          ...
                       Mr. V.D. Salunke, Advocate for appellants
                                          ...

                                   CORAM :        SMT. VIBHA KANKANWADI, J.

                                   DATE :         04th FEBRUARY, 2021.


PER COURT :


1              Issue notice to the respondents, returnable on 19.03.2021.


2              Call Record and Proceedings.


3              Heard learned Advocate appearing for the appellants. Perused

the Judgment and Decree passed by the Courts below.                          The present

respondent No.1 is the original plaintiff, who filed the suit for declaration,

perpetual injunction and possession. Further, it appears that during the

pendency of the suit itself amendment was sought in respect of the prayers

itself and there was even an earlier Judgment and Decree, which was passed

in Regular Civil Suit No.1/1993. The learned Trial Judge held that the

2 SA_46_2021

plaintiff is the owner of the suit properties to the extent of 2/5th share and

the defendants were directed to hand over possession to the extent of 2/5th

share to the plaintiff. Declaration was given that the Judgment and Decree

passed in Regular Civil Suit No.1/1993 is not binding on the rights of the

plaintiff. The defendant Nos.1 to 3 were thereafter perpetually restrained

from alienating the suit property in favour of the third person till the

partition is effected by metes and bounds. The original defendant i.e. present

appellant filed R.C.A. No.113/2012 before the learned District Judge-1,

Vaijapur, Dist. Aurangabad and it also appears that the original plaintiff filed

cross objection. The appeal filed by the appellants was dismissed and the

cross objections were allowed. The entire suit came to be decreed, and

therefore, the appellants are before this Court in this Second Appeal.

4 It will not be out of place to mention here that the plaintiff is

claiming that she is the only heir left by one Shripati Patilba Bhade and the

present appellants were also claiming to be the heirs of said deceased. As

regards this issue regarding the only legal heir the Trial Judge has given a

finding that it is partly in the affirmative to the extent of 2/5th share only

and it was held that defendant Nos.1 to 3 are having 1/5th share each. That

means, they were held to be the heir of deceased Shripati. But the Appellate

Court appears to have totally negatived that and held that the plaintiff is the

3 SA_46_2021

only legal heir. Thus, there appears to be no concurrent findings. Definitely,

there appears to be some substantial questions of law, which can be said at

this prima facie stage appearing, and therefore, it is necessary to stay the

Judgment and Decree passed by First Appellate Court till the respondents are

heard. Hence, till the next date there shall be stay in terms of prayer clause

'D'.

( Smt. Vibha Kankanwadi, J. )

agd