Dropadabai Wamanrao Thorat vs Shrirang Madhavrao Thorat And ...
2021 Latest Caselaw 9266 Bom

                                                                          SA-284-2021.odt


                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD

                          SECOND APPEAL NO.284 OF 2021
                         WITH CA/5786/2021 IN SA/284/2021

          Sau. Dropadabai Wamanrao Thorat
          Age: 65 years, Occu.: Household & Agril.,
          R/o. Basmatnagar, Tq. Basmatnagar,
          Dist. Hingoli                                                ... Appellant
                   Versus
1.        Shrirang Madhavrao Thorat
          Age: 60 years, Occu.: Service,
          R/o. Jaiprakash Vasahat, Koutha Road,
          Basmatnagar, Tq. Basmatnagar,
          Dist. Hingoli.
2.        Yashwantrao Babarao Ubare
          Age: 45 years, Occu.: Contractor,
          R/o. Budhawada, Basmatnagar,
          Tq. Basmatnagar, Dist. Hingoli.
3.        Sushilabai Ramchandra Bansode
          Age: 35 years, Occu.: Household,
          R/o. Nanded at/present: Jaiprakash
          Nagar, Kautha Road, Basmatnagar,
          Tq. Basmatnagar, Dist. Hingoli.                              ... Respondents

                                ..........
Mr. P. R. Katneshwarkar and Mr. S. V. Patil, Advocates for appellant.
                                ..........


                                    CORAM           : SMT. VIBHA KANKANWADI, J.

Reserved on : 06.07.2021 Pronounced on : 15.07.2021

ORDER :-

. Present appeal has been filed by the original plaintiff, challenging

the judgment and decree passed in Regular Civil Appeal No.23 of 2012

SA-284-2021.odt

by learned District Judge-1, Basmatnagar, Dist. Hingoli on 19.01.2021;

thereby reversing the judgment and decree passed in Regular Civil Suit

No.139 of 2006 on 05.07.2012 by learned 2nd Joint Civil Judge Junior

Division, Basamtnagar, Dist. Hingoli. Present appellant - original

plaintiff had filed suit for declaration and injunction. Suit was decreed

by the trial Court, however, it was dismissed in appeal filed by original

defendant No.1.

2. Heard learned Advocate Mr. P. R. Katneshwarkar for appellant -

original plaintiff.

3. In Ashok Rangnath Magar Vs. Shrikant Govindrao Sangvikar,

[2015 Mh.L.J. Online (S.C.) 140 :: (2015) 16 SCC 763], it has been

observed thus :-

"18. In the light of the provision contained in Section 100, Civil Procedure Code and the ratio decided by this Court, we come to the following conclusion :

(i) On the day when the second appeal is listed for hearing on admission if the High Court is satisfied that no substantial question of law is involved, it shall dismiss the second appeal without even formulating the substantial question of law;

(ii) In cases where the High Court after hearing the appeal is satisfied that the substantial question of law is involved, it shall formulate that question and then the appeal shall

SA-284-2021.odt

be heard on those substantial question of law, after giving notice and opportunity of hearing to the respondent;

(iii) In no circumstances the High Court can reverse the judgment of the substantial question of law and complying with the mandatory requirements of section 100, Civil Procedure Code."

Therefore, in view of ratio laid down in the aforesaid decision, it

will have to be seen whether substantial questions of law as

contemplated under Section 100 of Code of Civil Procedure have been

made out for admitting the appeal. This Court is bound to formulate

substantial questions of law, if arising, before issuing notice to the

respondents.

4. Perusal of both the judgments and decrees passed by the Courts

below would show that there is no concurrent finding given by them.

The learned Trial Judge has held that plaintiff is the joint owner of the

immovable property with original defendant No.1. Learned First

Appellate Judge, though came to conclusion that defendant No.1 is not

the sole owner of the suit property, yet held that plaintiff and defendant

No.1 are not joint owners. In fact, there is a registered sale-deed dated

17.06.1987 executed by the original owner in favour of plaintiff and

defendant No.1. Defendant No.1 has contended that entire consideration

has floated from him. Both the Courts have negatived his evidence. Now

SA-284-2021.odt

the question is when learned First Appellate Court has held that

defendant No.1 is not the sole owner, then who would be the joint

owner with him? Sale-deed stands in the name of plaintiff and

defendant No.1. If plaintiff was held to be the joint owner by the

learned Trial Judge, then whether there was any necessity to disturb that

finding? The consequential relief of injunction would then follow.

Therefore, there are substantial questions of law arising in this case,

they are as follows :-

1. Whether the First Appellate Court was justified in reversing the finding of learned Trial Judge, holding plaintiff as joint owner of the suit property?

2. Whether the First Appellate Court was justified in invoking provisions of Order 2, Rule 2 of Code of Civil Procedure to non-suit the plaintiff, when no such contention was raised by defendants in their written statements?

3. Whether the suit was maintainable in the form it was filed as alternative efficacious remedy is available to the plaintiff?

4. Whether the suit was within limitation?

5. Thus, when the substantial questions of law are arising as

contemplated under Section 100 of Code of Civil Procedure, the second

appeal is admitted.

SA-284-2021.odt

6. The civil application for interim relief will be considered after the

respondents are heard.

7. Issue notice of the second appeal as well as civil application to the

respondents, returnable on 12.08.2021.

[SMT. VIBHA KANKANWADI, J.]

scm