Bombay High Court
Shahu Maruti Chandne And Others vs Damu Sakharam Chandne Deceased ... on 27 July, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.302 OF 2021
SHRI. SHAHU MARUTI CHANDNE AND OTHERS
VERSUS
SHRI. DAMU SAKHARAM CHANDNE AND OTHERS
.....
Advocate for Appellants : Mr. M. S. Kulkarni.
.....
CORAM : SMT.VIBHA KANKANWADI, J.
DATE : 27-07-2021.
ORDER :
1. Heard learned Advocate Mr. M. S. Kulkarni for the appellants.
2. The procedure that is required to be followed in the second
appeal has been enumerated in Ashok Rangnath Magar vs. Shrikant
Govindrao Sangvikar, reported in (2015) 16 SCC 763 as under;
"18. In the light of the provisions contained in section
100, Civil Procedure Code and the ratio decided by this
Court, we come to 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
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is involved, it shall formulate that question and then
the appeal shall 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 trial Court and the first Appellate
Court without formulating the substantial question of
law and complying with the mandatory requirements
of section 100, Civil Procedure Code."
Therefore, it is required to be seen as to whether substantial
questions of law have been made out or not.
3. The present appellants are the original plaintiffs who had filed
Regular Civil Suit No.31 of 2010 before learned 5 th Jt. Civil Judge
Senior Division, Ahmednagar for partition, separate possession,
declaration and perpetual injunction. It came to be partly decreed
on 26-09-2013. It was held that plaintiffs No.1, 2, 3 and defendant
No.1 have 1/5th undivided share each, whereas plaintiffs No.4, 5
and 6 collectively have 1/15th undivided share each in the suit
property. The sale deed dated 04-06-2009 executed by defendant
No.1 in favour of defendant No.2 was declared as null and void and
not binding on the plaintiffs. It was further submitted that the area
to the extent of the undivided share of respondent No.1 sold to
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defendant No.2 vide sale deed dated 04-06-2009 be adjusted to the
share of defendant No.1. The original defendant No.2 and later on
his legal representatives challenged the said decree in Regular Civil
Appeal No.339 of 2013. The said appeal was heard by District
Judge-13, Ahmednagar and it came to be allowed on 26-02-2020,
thereby a decree granted by the learned Trial Judge was set aside
and the suit came to be dismissed. Before turning to other things
involved; when there is no concurrent Judgment, this Court can
consider the second appeal if it is giving rise to substantial questions
of law.
4. It is to be noted that both the Courts below had come to the
conclusion that the plaintiffs have proved that the suit property is
the ancestral property of the plaintiffs and defendant No.1. Even the
Appellate Court has held that the plaintiffs have share in the suit
land admeasuring 33 R. However, the First Appellate Court went on
to dismiss the suit on the ground of non-joinder of necessary
parties. It will not be out of place to mention here that the learned
Trial Judge has held that the suit is not bad for non-joinder of
necessary party, so this is the contrary finding. As regards the sale
deed is concerned, the point that was framed by the First Appellate
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Court was, "Whether the sale deed dated 04-06-2009 is binding on
the plaintiffs ?" There appears to be some typographical mistake in
the findings column in paragraph No.16 or the tenor of the point was
not properly considered by the learned First Appellate Court. The
reasons those have been given to that finding are in paragraph
No.24 which is almost ten line paragraph. It has been stated that
the finding by the learned Civil Judge Senior Division was on the
basis that defendant No.1 cannot alienate or sell the ancestral
property more than his share in the suit land and for that purpose,
the observation is made that the learned Senior Division has
properly observed that sale deed dated 04-06-2009 is not binding on
the shares of the plaintiff, but then the further line is stated that
hence he answers point No.2 in the negative. So, there appears to
be some confusion in the mind of the learned Judge of the First
Appellate Court when he wanted to give the finding in the
affirmative by holding that the said sale deed is not binding on the
plaintiffs. The only ground on which the appeal seems to have been
allowed and the suit has been dismissed is the non-joinder of
necessary parties. It appears that a contention was raised that
original owner Maruti had one daughter by name Rambhabai
Narayan Sasane and she has not been made as a party to the
5 SA 302-2021
proceeding. The paper book has been made available. Defendant
No.2 is the person who had purchased the property from defendant
No.1 who is one of the legal representatives of Maruti. In fact,
defendant No.1 had admitted the suit claim by filing a pursis at
Exhibit 16. The question, therefore, is whether the purchaser who is
a third party to the family can raise the defence or contention about
non-joinder of the necessary party to the suit. Now the defendant
No.2 has not examined defendant No.1 as his witness. Whether
defendant No.2 can have personal knowledge about the existence of
one more legal representative, is a question. If the third person is
having so much of knowledge then the presumption can be raised
that he had the knowledge as to whether the suit property is
ancestral property or not. He himself has not obtained signature or
acknowledgement from said Rambhabai to his own sale deed. He
has examined witnesses to support his contention and those
witnesses have also stated that Rambhabai was the daughter of
Maruti, however, PW.2 in his cross-examination has claimed
ignorance about that. As regards another witness PW.3 Bhanudas,
one admission has been recorded that Maruti has a daughter by
name Rambhabai, which is a suggestive question to him. This
appears to have swayed the First Appellate Court to dismiss the suit,
6 SA 302-2021
now that is giving rise to substantial question of law. The second
appeal, therefore, deserves to be admitted and accordingly, it is
admitted on following substantial questions of law : -
(1) Whether the First Appellate Court was justified in
reversing the decree granted by the learned Trial Judge ?
(2) Whether the Appellate Court was justified in
proceeding with the appeal further when it was brought
to notice that the original defendant No.1 (respondent
No.7 in appeal) had expired during the pendency of the
appeal and his legal heirs were not brought on record, as
they were concern with the 1/5th share which was
granted to deceased Baburao ?
(3) Whether the learned District Judge was justified in
arriving at a conclusion that the suit suffers from non-
joinder of necessary party viz. Rambhabai ?
(4) Whether the interference is required ?
5. Issue notice to the respondents, returnable on 27-09-2021.
6. Call for record and proceedings.
(SMT. VIBHA KANKANWADI)
JUDGE
vjg/-
