Abdul Dadabhai Inamdar And Others vs Chandbi Usman Inamdar And Others
2021 Latest Caselaw 3340 Bom

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                                      (1)


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    BENCH AT AURANGABAD

              CIVIL APPLICATION NO.7624 OF 2018
                             WITH
              CIVIL APPLICATION NO.11406 OF 2018
                             WITH
              CIVIL APPLICATION NO.10602 OF 2018
                              IN
           SECOND APPEAL (STAMP) NO.41917 OF 2017

 Abdul Dadabhai Inamdar and Others                    ...Applicants
                                                      (Orig. Appellants)

                  Versus
 Smt. Chandbi Usman Inamdar and Others              ...Respondents
                                                  (Orig. Respondents)
                                ...
 Mr. P.R. Katneshwarkar i/b Ms. Suvarna M. Zaware, Advocate for
 the applicants.
 Mr. Shaikh Mazhar A. Jahagirdar, Advocate for respondent nos.1
 to 5.
                                ...
                               CORAM : SMT. VIBHA KANKANWADI, J.

DATED : 23rd FEBRUARY, 2021

ORDER:-

. Civil Application No.7624 of 2018 has been fled by

the applicants/appellants for condoning the delay of 1320 days

in bringing legal representatives of original appellant no.3 on

record. Civil Application No.11406 of 2018 has been fled for

condoning the delay of 434 days in fling second appeal. Civil

Application No.10602 of 2018 is fled for stay.

2. Heard learned Advocate Mr. P.R. Katneshwarkar

instructed by learned Advocate Ms. Suvarna Zaware for the

applicants and learned Advocate Mr. Mazhar Jahagirdar for

respondent nos.1 to 5. In order to cut short it can be said that

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both the learned Advocates have made submissions in support

of their respective contentions. Further, learned Advocate for

the applicants has relied on the decision in the case of

Banwarilal (Dead) by legal representatives and Another

Vs. Balbir Singh, (2016) 1 SCC 607 , wherein it has been

held that the Order 22 stipulates manner in which legal

representatives of a deceased party ought to be brought on

record even though prescribed procedure cannot be

circumvented by fling application under Order 1 Rule 10 of the

Civil Procedure Code read with Section 151 of the Civil

Procedure Code, held, it would be unjust to non-suit LRs

concerned on the ground of technicalities. Provisions of Order

22 CPC are not penal in nature. It is a rule of procedure and

substantial rights of the parties cannot be defeated by

pedantic approach by observing strict adherence to the

procedural aspects of law. The provisions contained in Order

22 are not to be construed as a rigid matter of principle but

must ever be viewed as a feeible tool of convenience in the

administration of justice.

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

applicants were the original defendants and present

respondents are the original plaintifs. Original plaintifs had

fled R.C.S. No.382 of 2011 before the 4th Joint Civil Judge,

Junior Division, Kopargaon, District Ahmednagar for

declaration, recovery of possession and perpetual injunction

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against the present appellants-applicants. It came to be

decreed on 10.12.2013. Original defendants then fled R.C.A.

No.10 of 2014 before District Court, Kopargaon. The appeal

was heard by learned District Judge-1, Kopargaon and it came

to be dismissed on merits on 16.07.2016. Original defendants

intent to fle second appeal, however, there is delay so also the

fact is that original defendant no.3, Abdul Rauf Hasan Pathan,

who was appellant no.3 before First Appellate Court eepired on

07.06.2014 i.e. during pendency of the appeal itself, however,

his legal representatives were not brought on record. The

matter was argued in absence thereof by the appellants and

the appeal came to be dismissed.

4. Now by fling Civil Application No.7624 of 2018, the

applicants intend to bring legal representatives of appellant

no.3 on record for which there is delay of 1320 days. For

eeplaining the delay, it has been stated that the applicants had

infact informed their Advocate on record about the death of

appellant no.3 and they assumed that the Advocate would

have taken steps to bring the legal representatives on record.

However, the said fact did not happen. They were not even

aware about the judgment and decree passed in R.C.A. No.10

of 2014 on 16.07.2016. When they had gone to Advocate in

the month of November to inquire about the matter, they came

to know that it has been decided long back. Further collecting

necessary documents, they had come to Aurangabad to fle

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second appeal. It is to be noted that there is a huge delay in

bringing legal representatives of appellant no.3 on record. The

appellants have not come with a case that they were not

aware about the facts, but they are positive in saying that they

had informed about the fact of death of appellant no.3 to their

Advocate. There is nothing on record to show that any such

formality was complied with by them. Now, it would be very

much easy to blame the Advocate, who is not present before

this Court. When the legal representatives are to be brought

no record, it requires tender of the death eetract, application to

be fled along with afdavit and also the vakalatnama to be

signed by the legal representatives. If none of these things

were done by those legal representatives, then it is hard to

believe that any such information would have been

communicated by them to their Advocate. Very vague

statement has been made. No doubt, in view of the

observations in Banwarilal's case, Order 22 of Civil Procedure

Code is not a penal provision, but at the same time when it

stipulates a procedure to bring the legal representatives of a

deceased party on record, then it is required to be adhered to.

Discretion lies in the matter if reasonable ground is shown.

When it comes to a decree which is passed joint and several

against a person, then non-bringing of legal representatives of

one of the party, who is liable to obey the decree then

defnitely the person in whose favour decree is passed would

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get a right. In that circumstance, the appeal preferred had

abated as a whole and could not have been infact proceeded

at all.

5. Reliance can be placed on the decision in the case

of State of Punjab Vs. Nathu Ram, AIR 1962 S.C. 89 ,

wherein it has been observed that Courts will not proceed with

an appeal (a) when the success of the appeal may lead to the

Court's coming to a decision which will be in confict with the

decision between the appellant and the deceased respondent

and therefore which would lead to the Court's passing a decree

which will be contradictory to the decree which had become

fnal with respect to the same subject-matter between the

appellant and the deceased respondent; (b) when the

appellant could not have brought the action for the necessary

reliefs against those respondents alone who are still before the

Court and (c) when the decree against the surviving

respondents, if the appeal succeeds, will be inefective, i.e. to

say, it could not be successfully eeecuted. The said ratio has

been reiterated in the case of Annabai Devram Kini and

Others Vs. Mithilal Daisangar Singh and Others, 2002 (3)

Mh.L.J, 507 and in the case of Gajanan S/o Namdeo Kale Vs.

Sakhubai w/o Bhimaji Kharat (died) 2012 (4) Mh.L.J., 470 .

6. As aforesaid, the decree that was passed by the

learned 4th Joint Civil Judge, Junior Division, Kopargaon in R.C.S.

No.382 of 2011 was the declaration of the present

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respondents/original plaintifs, as owners of the suit property

and the defendants therein i.e. present appellants were

directed to deliver the vacant possession of the suit property to

the plaintifs within two months from the date of the decree.

Therefore, the said decree was joint and several. Non-bringing

of one of the judgment debtor has resulted in abatement of the

entire proceedings. Now, no reasonable ground has been

shown to condone the delay. Another fact that is required to

be considered at the same time is that, when the matter was

on board on 21.09.2018, it was submitted on behalf of the

applicants to delete the names of applicant/appellant nos.3-A

to 3-C in that application i.e. Civil Application No.11406 of

2018. Those applicant nos.3-A to 3-C are in fact legal

representatives of original appellant no.3. This Court on

21.09.2018 allowed names of appellant nos.3-A to 3-C to be

deleted at the risk of applicants/appellants. Necessary

correction was directed to be made during the course of the

day and accordingly, the learned Advocate appearing for

applicant nos.3-A to 3-C deleted their names. It will not be out

of place to mention here that this Civil Application No.7624 of

2018 was in fact fled on 12.04.2018, still that submission was

made by the applicants on 21.09.2018 and the names of

applicant nos.3A to 3-C were deleted. Inspite of deletion of

those names, it appears that applicants were persuading

separate application which is numbered 7624 of 2018. Still

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submission was made that the said application to be heard

along with main appeal and accordingly, the said order was

passed. There is no separate application or even oral

application on behalf of the applicants to set aside the said

order dated 21.09.2018 passed by this Court. The efect is

that in view of the order passed by this Court on 21.09.2018,

names of proposed legal representatives of appellant no.3 on

record stood deleted at the risk of the applicants and therefore,

Civil Application No.7624 of 2018 does not survive at all. It

deserves to be so rejected independently also.

7. As aforesaid, Civil Application No.11406 of 2018 is

fled for condoning the delay of 434 days in fling second

appeal. As aforesaid, names of appellant nos.3-A to 3-C stood

deleted on 21.09.2018. In fact when original appellant no.3

Abdul Rauf Hasan Pathan has eepired during pendency of the

frst appeal and his legal representatives have not been

brought on record, that appeal itself had abated as a whole.

Under such circumstance, there is no question of condoning

the delay. This Court cannot proceed in absence of those legal

representatives, as the decree that has been passed which the

appellants intend to challenge is joint and several.

Alternatively also, it is to be noted that the applicants are

contending that their Advocate had not informed them about

the decision in the matter and so also they were facing

fnancial problem. These two reasons may be considered as

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reasonable ground, yet, in view of the fact that names of

appellant nos.3-A to 3-C stood deleted, this application also

deserves to be rejected.

8. Even if for the sake of arguments it is accepted that

other two appellants can still proceed with the case, yet, then

it is required to be considered as to whether they are making

out any case for admission of the second appeal as

contemplated under Section 100 of the Civil Procedure Code.

The admitted facts are required to be considered which were

before the learned trial Judge. Agricultural land bearing gut

no.218 ad-measuring 4-H 17-R was originally owned by one

Begubhai Inamdar, who had two sons, one Usmanbhai Inamdar

and another Dadabhai Inamdar. Usmanbhai eepired on

15.05.2002 leaving behind a widow, one son and three

daughters. After death of Begubhai, there was litigation in

respect of the said property between one Shaikh Yaseen Chand

Patel and legal representatives of Begubhai bearing R.C.S.

No.711 of 1980. Compromise took place in which Shaikh

Yaseen got 1/3rd share, Usmanbhai and Dadabhai took 1/3rd

share each. Compromise decree was entered to the revenue

record as per mutation entry no.134. Thereupon, Usmanbhai

had become owner of 1/3rd share i.e. 1-H 39-R. Usmanbhai's

heirs are the plaintifs. The plaintifs found that in the month

of January 2011, name of Usmanbhai came to be substituted in

the 7/12 eetract in the name of defendant no.1 and defendant

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no.3. It is stated that it was due to the infuence of those

defendants with the revenue ofcers. Further there is a

document showing that Usmanbhai had given an application in

the year 2000 for partition of his 1/3rd share and requested

16-R to be transferred in favour of defendant no.1 and 40-R in

favour of defendant no.3 and had kept 39-R land to himself.

Plaintifs contend that Usmanbhai had never given that

application and therefore, on the basis of that application,

names of defendant nos.1 and 3 could not have been shown in

the mutation and the said change cannot give any title or

interest to those defendants. Therefore, they prayed for

declaration and possession.

9. Defendants had resisted the suit and averred that

Usmanbhai had himself given that application under Section 85

of Maharashtra Land Revenue Code and thereafter, the

partition has been efected. Accordingly, mutation entry

no.207 has been mutated. It is stated that such thing has

been done by Usmanbhai as he intended to move out of village

and for that purpose, the document was eeecuted.

10. Both the Courts below have held that 7/12 eetract

of the agricultural land on the basis of mutation entry no.207 is

illegal and void. Plaintifs are still the owner of the suit

property. Defendants have failed to prove the perfection of

their title. It has been held on the facts that no notices were

issued for confrming the mutation entry when the share of

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Usmanbhai was carved out in view of compromise decree and

he was the eeclusive owner, then he could not have on the

basis of any such application transferred the portion of his land

much less under Section 85 of Maharashtra Land Revenue

Code. Sufce it to say that the facts and law have been

properly considered by both the Courts below. When by way of

compromise decree Usmanbhai had become the owner of

1/3rd share i.e. to the eetent of 1-H 39-R, then transfer of any

portion thereof to another person who cannot be said to be the

heir, was not permissible under Section 85 of Maharashtra

Land Revenue Code. Defendant no.1 appears to be the

nephew of Usmanbhai i.e. son of Dadabhai. It appears that

there was no relationship between defendant no.3 and

Usmanbhai as it is not refected in the pleadings. Under such

circumstance, the transfer of title ought to have been either by

way of sale, gift, relinquishment or will that is permissible

mode of transfer of title and not by way of fling an application

under Section 85 of Maharashtra Land Revenue Code. Under

such circumstance, no substantial question of law is arising in

this case as contemplated under Section 100 of the Civil

Procedure Code. Therefore, all the three applications stand

rejected. No order as to costs.

(SMT. VIBHA KANKANWADI, J.) Mujaheed//