Bombay High Court
Kalawatibai Babasaheb Pokale vs Shantaram Pandharinath Tawale ... on 23 February, 2021
Bench: V. V. Kankanwadi
(1) AOs 12/2019 & Ors.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPEAL FROM ORDER NO.12 of 2019
with
CA NO.2775 of 2019
1) Ramdas s/o Rangnath Pokale
Age: 67 Yrs., occu. Agril.
R/o Tawallwadi, Tal.Ashti,
District Beed.
2) Narmada w/o Trimbak Kokane,
Age: 72 Yrs.,
occ. And r/o as above.
3) Lochanabai w/o Tukaram Dhas,
Age: 65 Yrs., occu. Agril.
R/o Jamgaon, Tal.Ashti,
District Beed. = APPELLANTS
(Orig.Deft.Nos.3 & 5)
VERSUS
1) Kalawati w/o Babasaheb Pokale,
Age: 62 Yrs., occu. Household,
R/o Tawalwadi, Tal.Ashti,
District Beed.
(Also know as Kalawati d/o
Yeshwanta Gore)
2) Shantaram s/o Pandharinath Tawale
Age: 60 Yrs., occu. Agril.
R/o Tawalwadi, Tal.Ashti,
District Beed. = RESPONDENTS
(Resp.No.1 is orig.
pltff. And Resp.No.2
is orig.Deft.No.1)
-----
WITH
APPEAL FROM ORDER NO.13 of 2019
with
CA NO.2798 of 2019
1) Ramdas s/o Rangnath Pokale
Age: 67 Yrs., occu. Agril.
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(2) AOs 12/2019 & Ors.
R/o Tawallwadi, Tal.Ashti,
District Beed.
2) Narmadabai w/o Trimbak Kokane,
Age: 72 Yrs.,
occ. And r/o as above.
3) Lochanabai w/o Tukaram Dhas,
Age: 65 Yrs., occu. Agril.
R/o Jamgaon, Tal.Ashti,
District Beed. = APPELLANTS
(Appellant No.1 is orig
Deft.No.1/plaintiff &
Appellant Nos.2 & 3
are orig.deft.3 & 4)
VERSUS
1) Kalawati w/o Babasaheb Pokale,
Age: 62 Yrs., occu. Household,
R/o Tawalwadi, Tal.Ashti,
District Beed.
(Also known as Kalawati w/o
Babasaheb Pokale)
2) Shantaram s/o Pandharinath Tawale
Age: 60 Yrs., occu. Agril.
R/o Tawalwadi, Tal.Ashti,
District Beed. = RESPONDENTS
(Resp.No.1 is orig.deft
No.5 & Resp.No.2 is
orig. deft.No.6)
Mr.RS Wani,Advocate for Appellants;
Mr.GR Syed, Advocate for Respondent No.1;
Mr.HV Tungar, Advocate for Respondent No.2.
WITH
APPEAL FROM ORDER NO.22 of 2019
WITH
CA NO.3754 of 2019
Kalawatibai w/o Babasaheb Pokale,
(Kalawati D/o Yeshwanta Gore)
Age: 63 Yrs., occu. Household,
R/o Tawalwadi, Tq. Ashti,
District Beed. = APPELLANT
(Orig.Plaintiff)
VERSUS
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(3) AOs 12/2019 & Ors.
1) Shantaram s/o Pandharinath Tawale
Age: 57 Yrs., occu. Agril.
R/o Tawalwadi, Tq.Ashti,
District Beed.
2) Ramdas s/o Rangnath Pokale
Age: 65 Yrs., occu. Agril.
R/o Tawalwadi, Tal.Ashti,
District Beed.
3) Narmada w/o Trimbak Kokane,
Age: 70 Yrs., occ. Household,
R/o Tawalwadi, Tal.Ashti,
District Beed.
4) Lochanabai w/o Tukaram Dhas,
Age: 65 Yrs., occu. Agril.
R/o Jamgaon, Tal.Ashti,
District Beed. = RESPONDENTS
(Resp.No.1 is orig.
deft.No.1 and Resp.
Nos.2 to 4 are
orig.deft.Nos.3to5)
WITH
APPEAL FROM ORDER NO.23 of 2019
WITH
CA NO.3755 of 2019
Kalawatibai w/o Babasaheb Pokale,
(Kalawati D/o Yeshwanta Gore)
Age: 63 Yrs., occu. Household,
R/o Tawalwadi, Tq. Ashti,
District Beed. = APPELLANT
(Orig. Deft.No.5)
VERSUS
1) Shantaram s/o Pandharinath Tawale
Age: 57 Yrs., occu. Agril.
R/o Tawalwadi, Tq.Ashti,
District Beed.
2) Ramdas s/o Rangnath Pokale
Age: 65 Yrs., occu. Agril.
R/o Tawallwadi, Tal.Ashti,
District Beed.
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(4) AOs 12/2019 & Ors.
3) Narmada w/o Trimbak Kokane,
Age: 70 Yrs., occ. Household,
R/o Tawalwadi, Tal.Ashti,
District Beed.
4) Lochanabai w/o Tukaram Dhas,
Age: 65 Yrs., occu. Agril.
R/o Jamgaon, Tal.Ashti,
District Beed. = RESPONDENTS
(Resp.No.1 is orig.
deft.No.6 and Resp.
No.2 is orig pltff
and Resp.Nos.3&4
orig.deft.Nos.2to3)
...
Mr.GR Syed Advocate for Appellant;
Mr. HV Tungar, Advocate for Resp.No.1
Mr.RS Wani, Advocate for Respondent Nos.2 to 4.
-----
CORAM : SMT.VIBHA KANKANWADI,J.
RESERVED ON : 27th January, 2021
PRONOUNCED ON: 23rd February, 2021
JUDGMENT :-
1. All these Appeals from orders are almost
between the same parties and involve common point
and, therefore, they are being heard together and
proposed to dispose of by a common judgment.
2. Appeal from Order No.12/2019 and Appeal
from Order No.22/2019 challenge the judgment and
order passed in Regular Civil Appeal No.22/2015 by
learned District Judge-8, Beed on 14.12.2018.
Appeal from Order No.12/2019 has been filed by
(5) AOs 12/2019 & Ors.
original defendant Nos.3 and 5; whereas Appeal from
Order No.22/2019 is filed by original plaintiff.
Original plaintiff filed Regular Civil Suit No.
322/2005 before Joint Civil Judge, Junior Division,
Ashti, District Beed for declaration of ownership
and permanent injunction. Appeal from Order No. 13
of 2019 has been filed by original deft No.1, who
was later on transposed as plaintiff in Regular
Civil Suit No.95 of 2005, with original defendant
No.3 and 4; whereas Appeal from Order No.23 of 2005
is filed by original defendant No. 5 in the same
suit. Appeal from Order No.13/2019 and Appeal from
Order No. 23/2019 challenge the judgment and order
passed in Regular Civil Appeal No.21/2015 by
learned District Judge-8, Beed on 14.12.2018.
Parties are referred by their names for the sake of
convenience and to avoid confusion.
3. It appears from all these Appeal from
Orders that Dwarkabai Babasaheb Pokale, who was
defendant No.6 in RCS No.322/2005, had filed RCS
No.95/2005 for partition, separate possession and
mesne profits as well as for declaration that the
divorce obtained from Defendant No.5 by deceased
(6) AOs 12/2019 & Ors.
Babasaheb is legal. Defendant No.5 is plaintiff in
RCS No.322/2005. During pendency of the suit,
Dwarkabai expired and in her RCS No.95/2005,
original defendant No.1 therein, was transposed as
plaintiff. Both the suits were tried before the
Joint Civil Judge, Junior Division, Ashti, District
Beed and they were disposed of by separate
judgments by the same Judge on 31.12.2014. RCS
No.322/2005 was decreed. The Kalawati and Ramdas
were declared as owners of undivided 1/4th share
each in the suit land. Defendant No.1 in RCS No.
322/2005 and deft. No.6 in RCS No.95/2005, viz.
Shantaram was restrained from disturbing the
possession of the plaintiffs over the suit land.
In RCS No.95/2005 along with the transposed
plaintiff, deft.Nos. 3 to 5 were declared as owners
of 1/4th share each in the suit land as well as
suit house. The partition was directed to be
effected through precept to be sent to the
Collector in respect of the agricultural land and
through Court Commissioner in respect of the suit
house.
4. Defendant - Shantaram challenged the
(7) AOs 12/2019 & Ors.
decree passed in RCS No.322/2005 by filing Regular
Civil Appeal No.22/2015 and by filing Regular Civil
Appeal No.21/2015 he challenged the judgment and
decree passed in RCS No.95/2005. Both the appeals
were heard by learned District Judge-8, Beed and by
separate judgments pronounced on 14.12.2018, both
the suits were remanded to the trial court with
directions to allow defendant - Shantaram to amend
his pleadings and adduce evidence, if any in view
of the observations made in the judgment. It was
thereafter directed that the learned Trial court
should frame appropriate issues in consequence of
the amendment and to give an opportunity to all the
parties to put their fresh evidence. These
judgments and orders passed in both the Regular
Civil Appeals are the subject matter of these four
Appeals from order. Civil Applications have been
filed in respective Appeal from Orders for stay to
the orders passed in the Regular Civil Appeals.
5. Heard learned Advocate Mr. Wani appearing
for the appellants in AO Nos.12/2019 and 13/2019;
Learned Advocate Shri GR Syed for appellants in AO
Nos.22/2019 and 23/2019; Learned Advocate Mr. HV
(8) AOs 12/2019 & Ors.
Tungar for Respondent No.1, i.e. Respondent -
Shantaram in all the four Appeals from Order.
6. It has been vehemently submitted on
behalf of the appellants that the learned District
Judge-8 failed to take into consideration the
pleadings those were put by defendant - Shantaram
in both the cases. Defendant No.1 had contended
that deceased - Babasaheb, through whom plaintiff -
Kalawati as well as Dwarkabai were claiming, had
inducted him on batai basis in the month of
Vaishakh prior to two years of his death. However,
he preferred not to lead any evidence in support of
his contention and he simply passed a pursis to
that effect. If he had no intention to lead any
evidence, the learned First appellate court cannot
force him to lead it. Necessary particulars of
alleged tenancy were never given by defendant No.1
- Shantaram in his written statement. He never
made any application before the trial court when
the matter was pending for about nine years two
months and twenty six days to have appropriate
issues framed in view of the decision. Now, at the
time of appeals, something on the basis of the
(9) AOs 12/2019 & Ors.
other suit and the decision given by the Tahsildar,
the learned first appellate court has given an
opportunity to defendant no.1 to amend his written
statement when, in fact, his appeal memo does not
contain any such prayer. Perusal of the appeal memo
would show that he never prayed for remand of the
matter. The rules of amendment under Order VI,
particularly Rule 17 of Code of Civil Procedure are
very much strict and unless the reasons are
assigned as to why those pleadings could not be
incorporated at the appropriate stage, none of the
parties can be allowed to amend their pleadings.
Under such circumstance, the first appellate court
by its judicial order cannot dilute the strict
rule. Reliance has been placed on the decision in
the case of Syeda Rahimunnisa Vs. Malan Bi (Dead)
by Legal Representatives and another - (2016) 10
SCC 315., wherein it has been held that, -
".....in absence of any pleading for remand
before High Court or first appellate
court, matter cannot be remanded to lower
court, where parties to appeal never
complained at any stage of proceedings
that trial of suit was unsatisfactory
resulting in prejudice, under such
circumstances remand cannot be made -
Party seeking remand must make out case
under Rule 23 or Rule 23-A or R. 25 of
Order 41 CPC."
(10) AOs 12/2019 & Ors.
7. It was further submitted on behalf of the
appellants that the first appellate court failed to
consider that though defendant No.1 had
specifically denied in his written statement that
plaintiff - Kalawati is cultivating the suit land
after demise of her husband; yet preferred not to
lead evidence though he was contending that he was
inducted by Babasaheb. No doubt, there was
internal dispute between Kalawatibai and Dwarkabai
on the point of divorce that was allegedly given to
Kalawatibai by Babasaheb and thereafter his
marriage with Dwarkabai, however, by amending the
plaint, plaintiff - Kalawatibai herself had
contended that she as well as defendant Nos.2 and
3, i.e. Shantabai Rangnath Pokale and Ramdas
Rangnath Pokale, be declared as owners. In fact,
earlier she was praying that she alone had
succeeded to the property left by Babasaheb, who
was son of Rangnath and Shantabai. Mere producing
certain certified copies of decision before the
revenue authority, it cannot be stated that
deft.No.1 was in possession in the capacity as
tenant. Further, it was specifically mentioned that
though defendant No.1 succeeded in getting his name
(11) AOs 12/2019 & Ors.
mutated to the 7/12 extract for the year 2004-2005,
the appeal preferred by the plaintiff before the
Sub Divisional officer, Beed was still pending when
Kalawati filed the suit. Under such circumstance,
when he preferred not to lead evidence, the first
Appellate court exceeded in its jurisdiction in
allowing him to amend the plaint and giving him an
opportunity to lead evidence in respect of the
amended plaint. The order of remand in both the
appeals is, therefore, illegal and deserves to be
set aside.
8. Per contra, learned Advocate Mr. Tungar,
appearing for defendant - Shantaram, at whose
instance now, the suits have been remanded by the
first Appellate Court, submitted that, there were
basic pleadings in the written statement filed by
defendant - Shantaram in both the suits. Defendant
No.1 had admitted the description of the suit land.
In fact, in his written statement in RCS
No.322/2005, he has specifically contended that
deceased - Babasaheb had given customary divorce to
plaintiff - Kalawati on 20.4.1978. He also
contended that deceased Babasaheb had married to
(12) AOs 12/2019 & Ors.
Dwarkabai in May 1979 as per Hindu rites. He had
thereafter contended that he was inducted by
Babasaheb in the suit land for cultivating the land
on batai basis as defendant-Ramdas was staying
outside the village for his business and Babasaheb
himself was unable to cultivate the land. There
were attempts by him to get his name mutated,
however, the Talathi had not mutated it. Finally,
he applied for mutation of his name on 19.10.2004
and then after a detailed enquiry, his name came to
be mutated. Taking into consideration this aspect
which was also pleaded in RCS No.95/2005, issue to
that effect in both the cases, ought to have been
framed in respect of tenancy of defendant -
Shantaram and thereafter adjudication in that
respect ought to have been given.
9. The learned Advocate Shri Tungar has
relied on the decision of the Division bench of
this Court, bench at Panaji (Goa) in the case of
Shri Ajit Gaitonde and Anr. Vs. Smt. Ezilda
Emiliana Cristina Pinto(since deceased) - 2009 (3)
ALL MR 838, wherein, it has been held thus,-
"..Where a Court is rendering a finding,
(13) AOs 12/2019 & Ors.
it has got to be relatable to a plea
taken up in the pleadings of the parties
and the issue framed thereupon. In the
written statement, no such a plea was
raised. Even the written statement of the
defendants was vague in this behalf. The
trial Court did not frame any issue as
regard to the authority or otherwise of
the power of attorney and the consequence
of its ratification or otherwise. The
trial Court held that the power of
attorney did not empower the holder of
the attorney to enter into agreement to
sell or transfer the property, and as
such, the findings of the trial Court are
in apparent violation of the basic rule
of law and the provisions of the Code of
Civil Procedure. Held, it was expected of
the trial Court to frame an issue and
subject the parties to trial on that
issue. Non-framing of an issue is a
defect in the trial and has certainly
affected the rights of the parties to the
suit, adversely. These are the findings
which could be rerecorded only based on
specific pleadings and upon taking
appropriate evidence to the extent which
parties may deem fit and proper."
10. He further submitted that justice is
required to be done even when due to rustic and
rural pleadings, some facts remained to be
mentioned. The learned First appellate court has
taken a note of the order passed by the Tahsildar,
certified copy of which was produced at Exhibit-
155, in RCS No.95/2005, wherein, the Tahsildar had
accepted that the appellant is cultivating the land
in the capacity of tenant in the year 2004-2005. It
(14) AOs 12/2019 & Ors.
was specifically observed that the Trial Judge has
overlooked the point of tenancy and possession of
Shantaram on the basis of such tenancy and,
therefore, it is necessary to allow Shantaram to
raise the defence of tenancy by giving an
opportunity to amend his written statement.
11. Reliance has also been placed by
defendant- Shantaram on the decision in the case of
C.N.Ramappa Gowda Vs. C.C.Chandregowda (Dead) Lrs
and Anr. - 2012 ALL SCR 1563, wherein there was a
suit for partition and it was decreed ex parte on
the basis of affidavit of plaintiff. The Written
statement was not filed despite several particulars
were provided. The witnesses of the plaintiff were
also not cross-examined. Under those
circumstances, the High Court remanded the case to
the trial court for de novo trial. The said course
adopted by the High court was held to be justified
by Hon'ble Supreme Court.
12. At the outset, some relevant facts are
required to be considered. -
A] It appears that RCS No.95/2005 was filed
by Dwarkabai for partition, separate possession and
(15) AOs 12/2019 & Ors.
other reliefs on 28.3.2005. Dwarkabai had come with
a case that she is widow of Babasaheb. In her
pleadings itself, she had contended that Babasaheb
was married to Kalawati, i.e. deft.No.5, in that
suit. But then as they were not having any issue,
they had decided to take divorce by custom and
accordingly, by a registered deed, executed on
20.4.1978, they had taken divorce. Thereafter,
Kalawati did not reside with Babasaheb. Babasaheb
performed marriage with her. But, thereafter it is
also contended that deft.Nos.2 to 5 therein, had
filed Workmen's Compensation application. It came
to be allowed on 19.9.1996. She was not made party
to that proceeding. According to her, she is the
only heir left by Babasaheb. Deft.No.2 therein is
mother of Babasaheb. She further contends that she
had demanded her share to be carved out and handed
over to her. But it was not given and, therefore,
the suit was filed.
B] Ramdas- Defendant No.1 is brother of
deceased Babasaheb. Deft.Nos.1 and 2, i.e. brother
and mother of deceased Babasaheb, filed joint
written statement and it was also admitted that a
customary divorce was taken by Babasaheb from
Kalawati. They accepted that plaintiff-Dwarkabai
has share and, therefore, they prayed that the
appears to be sisters of Babasaheb and Ramdas. They
also prayed for decree as per law.
C] Deft.No.5 - Kalawati's written statement
(16) AOs 12/2019 & Ors.
in RCS No.95/2005 and her plaint in RCS
No.322/2005, depict same contentions and,
therefore, they are clubbed here. She admitted the
description of the properties, she has stated that
one Rangnath was the original owner, who died about
45 years ago, leaving behind wife, two sons and two
daughters. Babasaheb (Rangnath's son) expired on
3.12.1991. She denied that there was any such
divorce between her and Babasaheb as per law.
According to her, she is cultivating the land after
demise of Babasaheb, through labours. Her attempt
to get the land mutated in her name has failed.
However, deft.No.1 - Shantaram in RCS No.322/2005
and deft.No.6 in RCS No.95/2005, is resisting her
possession without any right, title and interest
and, therefore, she prayed for declaration and
injunction in her suit and dismissal of the suit
filed by Dwarkabai.
D] The contentions in the suit filed by
Dwarkabai have been admitted by deft.No.6 by filing
his written statement at Exh.20.
E] It will not be out of place to mention
here that, after Dwarkabai died, her son, i.e.
defendant - Ramdas, got himself transposed as
plaintiff.
F] In the Written Statement filed to RCS No.
322/2005, Ramdas has raised same defence.
G] Deft.No.1 - Shantaram in RCS No.322/2005
(17) AOs 12/2019 & Ors.
contended that he was inducted by Babasaheb to
cultivate the land on batai basis and his name came
to be ultimately mutated for the year 2004-2005 in
the cultivation column.
13. After the pleadings were complete, issues
came to be framed in both the cases. The parties
have led oral as well as documentary evidence.
Suffice to state here that, defendant - Shantaram
preferred not to lead any oral evidence. After
considering the evidence on record, both the suits
came to be decreed. In fact, it should be partly
decreed. But, then Kalawati and Ramdas as well as
the sisters of Babasaheb were held to be having
1/4th share each in the suit land as well as suit
house. Defendant - Shantaram was restrained
permanently from causing obstruction to the
plaintiff's possession over the suit land as per
the decree in RCS No.322/2005.
14. Both the judgments and decrees were
challenged by defendant - Shantaram by way of
separate appeals, i.e. RCA No.21/2015 and 22/2015.
The learned District Judge-8, Beed has remanded
both the suits with directions to the lower court
to allow defendant - Shantaram to amend his
(18) AOs 12/2019 & Ors.
pleadings and give an opportunity to all the
parties to lead evidence in consequence of the
amendment. Perusal of both the judgments passed by
the first Appellate Court, would show that the
learned District Judge has placed reliance on
certified copy of the decision by Tahsildar (Exh.
55, which was filed in RCS No.95/2005). It appears
that before the Tahsildar, defendant Shantaram had
put-forth the theory that he was inducted as
tenant. However, thereafter there was an agreement
to sell. If we peruse the decision given by the
Tahsildar, that was produced in the appeal before
the first Appellate court, it does not give the
date of agreement to sell. Further, it appears that
the learned first Appellate court lost sight of the
fact that if Shantaram intended to contend that in
view of the agreement to sell, the possession was
continued, then there should be a written
agreement to sell. It appears that in both the
matters, Shantaram had not filed any such document.
Another fact to be noted is, it does not appear
even in the written statement filed by Shantaram or
any such order passed by the Tahsildar, as to on
which date, Shantaram was inducted as tenant. He
(19) AOs 12/2019 & Ors.
has vaguely stated that two years prior to
Babasaheb's death he was inducted. Babasaheb
expired on 3.12.1991. It ought to have been
considered by the learned first Appellate court
that if this contention of the defendant (in
absence of any evidence led by him) is to be
accepted, it would date back to 1989 and since then
till 2004-2005, there was not a single attempt by
Shantaram to get his name mutated. The said
mutation about his possession is said to be for the
year 2004-2005. When Babasaheb had expired in
1991, then how without any further transaction his
name can be mutated in 2004-2005, is a question. If
Shantaram want to protect his alleged possession to
be protected on the basis of alleged agreement to
sell in view of Section 53-A of Transfer of
Property Act, then such agreement should be in
writing. Further in view of amendment in 2001 to
the Transfer of Property Act, if possession is
handed over, then such document should be
registered. There is absolutely no application of
mind to all these facts by the learned first
Appellate Court.
(20) AOs 12/2019 & Ors.
15. It was defendant Shantaram who had opted
for not to lead any evidence. He had not even made
an attempt to amend his written statement during
pendency of the appeal for about three years, ten
months and thirteen days. Perusal of the appeal
memo would show that there was absolutely no prayer
for remand of the matter. Under such circumstance,
on the basis of some flimsy ground, the first
Appellate Court cannot exercise its powers under
Rule 23 or 23-A of Order 41 CPC. Though the
learned first Appellate court had taken the note of
the pursis filed by Shantaram, at Exh. 116, for not
adducing any evidence in RCS No.322/2005; yet it is
very much surprising that such order of remand,
that too with liberty to amend the written
statement, has been passed.
16. Another glaring mistake has been
committed by the learned First Appellate Court. In
fact, whatever evidence has been led in RCS
No.95/2005 ought to have been strictly considered
while deciding the appeal arising out of that
judgment and decree. Same is the rule for appeal
arising from the judgment and decree passed in RCS
(21) AOs 12/2019 & Ors.
No.322/2005. Evidence led in one case can not be
suo motu considered by the appellate authority
while deciding another appeal. Merely because the
concerned Judge is deciding two matters in respect
of the same property and/or between same parties;
yet it is permissible in law that a Judge can
consider the evidence led in one of the matters
while adjudicating the another case. Interestingly,
though evidence in one matter is considered by
learned District Judge-8 in another matter while
deciding those two appeals, yet, she has written
two separate judgments.
. In fact, this Court has time and again
deprecated this practice of writing two separate
judgments in respect of two or more matters, which
one has impact on the other matter. Reason is
obvious, the concerned Judicial Officer wanted to
take the norms of disposal for two matters. Once,
again such practice is required to be deprecated by
reproducing the observations made by this Court in
Second Appeal No.153/2017 with SA No. 154/2017
decided on 13.8.2019 - Vikas Shivdas Patil Vs.
Sow. Gitanjali Vikas Patil. and in Cri. WP.
No.1985/2019 with Cri.Revn.No.368/2019, dated
(22) AOs 12/2019 & Ors.
12.6.2020 (Monika Sales Agencies and Anr. Vs.
Mahesh Nagari Sah.Patsanstha Ltd.). The said
observations read thus, :
"............Though both the matters were between the
same parties, wife had filed petition for restitution of
conjugal rights whereas husband was asking divorce.
Both the Courts below ought to have given a common
Judgment so as to avoid any contrary observations,
so also to have a compact view of the dispute
between the parties and the adjudication thereof. It
would be a harsh statement to make, but it has to be
made just to get some disposal units, if such practice
is adopted then it is depricable. The parties
approaching the Court should get clear idea as to why
their petition/ petitions have been either allowed or
rejected and when the evidence has been led in one
of the matters only, then just by taking a pursis in
another matter, it is not appropriate on the part of
the trial Court to pronounce a total separate
Judgments in order to create any confusion. Here in
this case trial Court in both the matters had given the
Judgment on the same day in both the matters when
in fact a common Judgment could have been given.
Points for consideration in such matters would be
overlapping and under such circumstance a common
Judgment ought to have been given. Same
happened at the stage of appeal also, therefore at
the cost of repetition it can be said that, if such
practice is adopted, just to get more disposal units
then it is required to be deprecated.
17. At the cost of repetitions, it is
reiterated that, judicial officers, only to get
more disposal norms, should not resort to such
kind of practice, which will jeopardize the rights
and remedies of the parties.
18. The learned first Appellate court has
(23) AOs 12/2019 & Ors.
given much weightage to the decision given by the
Tahsildar- a revenue officer, who had, in fact, no
right to adjudicate the civil rights of the
parties. The learned first Appellate Court lost
sight of the fact that the said order passed by the
Tahsildar was subjudice before the Sub-Divisional
Officer when RCS No.322/2005 was filed. That means
the judgment and order, which is relied upon by the
learned first Appellate Court, for remand, had, in
fact, not attained finality. It is, therefore,
dangerous for the Civil Courts to rely on a
decision by the revenue officer, without there
being any finality achieved to it.
19. Nobody had estopped or prevented
defendant - Shantaram from taking all those
contentions, which he had taken before the
Tahsildar for a clear-cut pleadings and request the
learned Trial Judge to frame an issue to that
effect. The work of framing of issues is a
conjoint task of the concerned Court as well as the
lawyers, who are representing the parties. If we
consider the tenor and frame of Order 14 of CPC,
then it is for the concerned Court to hear the
(24) AOs 12/2019 & Ors.
parties. That means, both the parties to submit
their pleadings or give summary of their pleadings
before the concerned Court and then it is expected
that based on those pleadings, issues should be
framed. When the suit was pending for such a
considerable time and there was no attempt by
defendant Shantaram that proper issues have not
been framed, he cannot raise it once again, when in
spite of knowledge, he preferred not to lead
evidence by giving the pursis at Exh.116. The
facts in C.N.Ramappa 's case (supra) are different.
In that case, it was an exparte decree and after it
was shown by the defendant that why he could not
produce or submit written statement, the matter was
remanded by the High Court for a de novo trial.
20. Sisters of Babasaheb were also parties to
RCS No.322/2005 as deft.Nos.4 and 5. In the decree
passed by the learned Trial Judge, declaration is
given to the extent of Kalawati and deft.No.3 -
Ramdas's share, i.e. 1/4th each. Then the learned
First Appellate Court observes about deft.Nos.4 and
5 that there is an error in the operative order
passed by the learned trial Judge. In fact, there
(25) AOs 12/2019 & Ors.
was no hurdle for the appellate court to correct
the operative order while arriving at the
computation of the share. In para No.55, the
learned Trial Judge has specifically observed that
the plaintiff and deft.Nos.3 to 5 are entitled to
1/4th share each in the suit land. Therefore, it
can be seen that the Trial Judge has accepted that
those sisters had share in the suit land. Merely
because there was a typographical mistake in the
operative order, that could have certainly been
corrected by the learned Judge in the appeal under
Section 96 of Order 41 of CPC. Those observations
by the learned first Appellate Court show non-
application of mind so also it is the result of
error in giving two separate judgments.
21. The learned first Appellate Court has, in
fact, observed in para No.30, thus, -
"30..... Defendant Shantaram has raised a
defence in the appeal that apart from
tenancy, later on he continued his
possession on the basis of agreement to
sale executed by defendant Ramdas. No
doubt this defence was not raised by
present appellant in lower court but this
theory of defendant reflects in the order
of Tahsildar."
. Thereafter learned Judge has reproduced
(26) AOs 12/2019 & Ors.
the case put-forward by Shantaram before the
Tahsildar and again observed, - "Thus, it seems
from above observations of Tahsildar that
defendant's stand/defence is not coming at
appellate stage as surprise. Why this defence was
not raised in the lower court is not explained by
appellant." When the defendant- Shantaram had not
raised such defence by his own choice, preferred
not to lead evidence by filing pursis Ex.116, took
part in final arguments; then question of giving an
opportunity to him does not arise. Surprisingly,
the first Appellate court has invoked the principle
of Audi Alterum Partem and meaning of that
doctrine has been given in bracket by the learned
first Appellate court as - "None should remain
unheard".
22. At the cost of repetitions, it can be
said that proper opportunity was given to Shantaram
to defend his case. He has taken part in both the
cases. In RCS No.95/2005, he is in fact admitting
the suit and in RCS No.322/2005, he has filed the
pursis at Exh.116 for not to lead evidence when his
turn to lead evidence had come. He cannot get any
advantage of his own silence and, therefore, the
(27) AOs 12/2019 & Ors.
order of remand passed in both the cases by the
learned first Appellate court are perverse and
illegal. They deserve to be set aside. It can be
seen that in view of decision of remand, it appears
that the appeals were not decided on merits.
Therefore, Regular Civil Appeals are required to be
restored to file and the First Appellate Court has
to give decision on merits in both the matters.
All the Appeals from orders are, therefore, deserve
to be allowed. In consequence, when this Court has
inclined to set aside the judgments and orders
passed by the first Appellate Court, the Civil
Applications for stay do not survive and they stand
disposed of. With these observations, following
order is passed, -
ORDER
I) The Appeal from Orders Nos.
12/2019; 13/2019; 22/2019 & 23/2019 stand
allowed;
II) The judgment and order passed by
learned District Judge-8, Beed in RCA
No.21/2015 and 22/2015, dated 14.12.2018
are hereby set aside. Both these Civil
(28) AOs 12/2019 & Ors.
Appeals are restored to file with their
old numbers and they are made over to
learned Principal District Judge, Beed
for their disposal according to law;
III) Pending Civil Applications stand
disposed of.
IV) No order as to costs.
(SMT. VIBHA KANKANWADI)
JUDGE
BDV
