Bombay High Court
Shri. Digambar Dhondu Patil And ... vs Shri. Vilas Laxman Surve And Ors on 14 January, 2021
Bench: C.V. Bhadang
10-sa-626-2020
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.626 OF 2020
Shri.Digambar Dhondu Patil & Ors. ..Appellants
V/s.
Shri.Vilas Laxman Surve & Ors. ..Respondents
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Mr.Pravin Dabade i/b Ms.Hemangi D. Pathare.
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CORAM : C.V. BHADANG, J.
Digitally signed
Nilam by Nilam Kamble
Kamble Date: 2021.01.14
16:57:13 +0530
DATE : 14th JANUARY 2021
P.C.
1. Heard learned counsel for the appellants.
2. The respondent No.1 Vilas Surve filed RCS No.88 of
2012 for partition and separate possession of several lands which
were subject matter of dispute. In order to appreciate the
contention raised it would be necessary to reproduce the genealogy
of parties as under:-
Laxman Surve
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Ankush (deceased) Vilas (Plaintiff) Vitha (Deceased)
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Satyawati Meghnath Deepa Rupa Madhavi Shama |
(Def.2) (Def.1) (Def.3) (Def.4) (Def.5) (Def.6) |
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Digambar Lata Santosh Pratibha Sunil
(Def.7) (Def.10) (Def.9) (Def.11) (Def.8)
N.S. Kamble page 1 of 4
10-sa-626-2020
The present appellants are original defendant Nos.7 to
11 and legal heirs of Vithabai Surve.
3. The learned Trial Court by a judgment and decree dated
28th July 2015 partly decreed the suit as under :-
"1. Suit is partly decreed. No order as to costs.
2. It is declared that the plaintiff has 1/3rd share,
the defendants No.1 to 6 have 1/18th share each and
the defendant No.7,9 to 11 have 1/15th share each, the
defendant No.8A to 8C have 1/45th share each in the
suit properties mentioned in plaint.
3. The decree shall be sent to the District Collector,
Ratnagiri to effect partition of the suit properties
mentioned in the plaint and to put the plaintiff and
defendants in possession of their respective shares
therein, as per provision of section 54 of the Code of
Civil Procedure, 1908.
4. Decree be drawn accordingly."
4. It was the respondent No.1 (Original Plaintiff) who
being dissatisfied with the shares granted challenged the same
before the learned District Judge in Civil Appeal No.56 of 2017. It is
necessary to note that the appellants did not challenge the decree of
the learned Trial Court as in all probability they were satisfied with
the same. The appeal came to be partly allowed by a judgment and
decree dated 07th August 2019 in the following terms.
N.S. Kamble page 2 of 4
10-sa-626-2020
"1. The appeal is partly allowed.
2. The judgment and decree passed on 28-07-2015
by 3 Joint Civil Judge (J.D.) in Regular Civil Suit
rd
no.88 of 2012 decreeing the suit of partition though
maintained, but the shares as crystallized by learned
trial Court are modified as under."
The clause 2 of the decree and the Judgment is
quashed and set aside and in place of it, it is declared
that the plaintiff/appellant has 4/9th share, the
defendants 1 to 6 together shall have 4/9th share and
the defendants/respondent Nos.7 to 11 together shall
have 1/9th share in the suit properties mentioned in
the plaint.
It is clarified further that the branch of
defendants 7 to 11 in which the defendant Nos.7,9, 10
and 11 each will have 1/9th divided by 5 = 1/45th
share each and the defendant/respondent Nos.8A to 8C
each shall have the share of 1/45th divided by 3 each
=1/135 i.e. 1/135th share each. Therefore, the branch
of original plaintiff will have 4/9 th , the branch of
defendant Ankush will together have 4/9th and the
branch of deceased Vitha will together have 1/9th
share.
3. Remaining part of the decree in operative clause
3 of the impugned decree and judgment is confirmed.
4. Considering the facts, no order as to costs.
5. In above terms, decree be drawn accordingly."
5. It can thus clearly be seen that, in fact, in the appeal,
the share' allotted to the present appellants i.e. the original
defendant No.7 to 11 has gone up from 1/15th as granted by the
Trial Court to 1/9th share granted by the learned Appellate Court. It
is thus difficult to see as to how the appellants can be said to be
N.S. Kamble page 3 of 4
10-sa-626-2020
aggrieved, particularly when they have chosen not to challenge the
judgment and decree passed by the learned Trial Court. Thus the
appeal does not involve any substantial question of law and it is
accordingly dismissed.
C.V. BHADANG, J.
N.S. Kamble page 4 of 4
