Bombay High Court
Yeshwant Trimbakrao Deshpande vs Trimbak Narharrao Deshpande And ... on 8 June, 2021
Bench: V. V. Kankanwadi
CA-559-2020 (civil).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO.559 OF 2020
IN
SECOND APPEAL NO.153 OF 2007
Yeshwant s/o Trimbakrao Deshpande ... Applicant
Versus
1. Trimbak s/o Narharrao Deshpande
2. Sow. Thakubai w/o Baliram Pandhavale ... Respondents
.....
Mr. R. K. Ashtekar, Advocate for applicant.
Mr. C. R. Deshpande, Advocate for respondent No.1.
Mr. M. B. Kolpe, Advocate for respondent No.2.
.....
CORAM : SMT. VIBHA KANKANWADI, J.
Reserved on : 04.03.2021
Pronounced on : 08.06.2021
ORDER :-
. Present application appears to have been filed under Order 1 Rule
10 of Civil Procedure Code for addition of the applicant as party
respondent in Second Appeal.
2. Heard learned Advocate Mr. R. K. Ashtekar for the applicant,
learned Advocate Mr. C. R. Deshpande for respondent No.1 and learned
Advocate Mr. M. B. Kolpe for respondent No.2.
3. It has been vehemently submitted on behalf of the applicant that
the applicant is the son of present respondent No.1 in this application,
CA-559-2020 (civil).odt
who is the original appellant in Second Appeal. Suit land Survey
No.112 admeasuring 2 Acres 34 Gunthas situated in village Deolali, Dist.
Osmanabad is the ancestral property of the applicant and it stands in the
name of respondent No.1 as Karta of the joint Hindu family. The
applicant was in Military service till 2003, thereafter he was working
with Reliance Group at Latur till 2007 and thereafter, he has joined
service with M.S.R.T.C. on 21.05.2017. Applicant had no knowledge
about the execution of any agreement by his father in favour of
respondent No.2. The remaining land was acquired by the State
Government for Deolali Medium Project and the compensation of the
said land was received in the year 2017. At that time, the applicant had
asked respondent No.1 to give share in the compensation as well as
remaining land to him, but at that time, he was told about the said
agreement and the litigation. He, thereafter, collected the documents
and came to know about the pendency of the Second Appeal. The
applicant has share in the suit property and, therefore, he is a necessary
party to the proceedings. His father, without his consent and without
any legal necessity, had executed the agreement in favour of respondent
No.2. Now, it appears that respondent No.1 will not be protecting the
interest of present applicant and, therefore, he deserves to be added as
respondent in Second Appeal. Learned Advocate for the applicant has
CA-559-2020 (civil).odt
thereafter taken this Court through the documents, which have been
produced by the applicant showing his retirement and subsequent
service he had undertaken till 2007. The group of First Appeals i.e. First
Appeal No.861 of 2007 with Cross Objection (ST.) No.16407 of 2007
were decided by this Court on 22.03.2017 and the copy of the said
judgment has been produced to support the contention that after this
judgment was pronounced, the enhancement in the compensation was
received, after which he had demanded his share from his father. There
is absolutely no delay in coming to this Court. When his interest and
share in the property needs to be protected, he deserves to be added as
necessary party to the proceedings.
4. Per contra, the learned Advocate representing respondent No.2,
after taking this Court through the affidavit-in-reply filed by respondent
No.2, further submitted that in fact when the suit was filed by her for
specific performance of the contract and present respondent No.1 who
was the original defendant filed written statement, he had specifically
contended that he is the only owner of the property who had received it
in the partition between him, his father and brother. The first appeal
filed by respondent No.1 came to be dismissed on 15.12.2006 and even
thereafter, there was no attempt on the part of the present applicant
either during the pendency of the first appeal or immediately thereafter
CA-559-2020 (civil).odt
to get himself added as party respondent by showing whatever reason
he wants to show it now. Now, it appears that the present application
has been filed in collusion between the applicant and respondent No.1
when they want to create multiplicity of the litigation. The applicant
has no title to the suit property. Further, when the property in dispute
was received by respondent No.1 in partition, it became the exclusive
property of respondent No.1 which he had agreed to sell to respondent
No.2 and, therefore, the applicant cannot be said to be the necessary
party to the litigation.
5. Perusal of the record would show that present respondent No.2
i.e. original plaintiff had filed Regular Civil Suit No.117 of 1994 before
learned Joint Civil Judge Junior Division, Osmanabad for specific
performance of the contract dated 04.09.1991 in respect of land Survey
No.112 to the extent of 2 Acres 34 Gunthas situated in village Deolali,
Tq. and Dist. Osmanabad. The said suit came to be decreed on
05.08.2002. Thereafter, present respondent No.1 - original defendant
filed Regular Civil Appeal No.148 of 2002 before the District Court,
Osmanabad. It was heard by learned Ad-hoc District Judge, Osmanabad
and was dismissed on 15.12.2006. Thereafter, he has filed the present
Second Appeal. It has been admitted on 31.07.2007 on following
question of law.
CA-559-2020 (civil).odt
" Whether in the facts and circumstances of the
present case, despite non-examination of the plaintiff
herself in the Court, it was legal and proper for the
Courts below to infer her readiness and willingness to
perform her part of the agreement throughout the
relevant period and whether the examination of the
power of attorney could substitute the requirement to
prove the readiness and willingness as needed under
Section 16(C) of the Specific Relief Act ?"
6. If we peruse the memo of Second Appeal, it can be seen that
absolutely no substantial question of law on the point that the suit was
not maintainable for nonjoinder of necessary party was ever taken by
respondent No.1. Perusal of the written statement would show that the
contents of paragraph No.3 of the suit/plaint have been admitted in
clear terms. In paragraph No.3 of the suit, the original plaintiff, after
giving the description of the suit land, has stated that the said land was
owned and possessed by the defendant and the land was allotted to the
share of the defendant during partition which was effected in between
defendant and his brothers and father. The name of the defendant is
recorded as occupant and owner of the suit property. Therefore, when
the defendant had put forward and admitted the case that it was his
exclusive property after the partition between him and co-parceners, the
suit had proceeded. Neither in the written statement nor at any time
CA-559-2020 (civil).odt
thereafter any such point was raised and there was no attempt on the
part of the original defendant to get specific issue framed to that extent.
Even in the appeal memo before the First Appellate Court, no such point
was raised, nor by way of separate application it was ever tried to be
raised. Even before that, during the testimony, the defendant has not
made any such statement stating that, his son is a co-parcener or co-
sharer in the said property. Now, except his own service record, there is
nothing which has been produced by the present applicant. In this
application also, he is not denying the fact that his father had received
the said property during the partition of the ancestral lands between his
father and grandfather as well as uncle. Under such circumstance, it
cannot be said that the present applicant is a necessary party to the
proceedings.
7. Another fact which is indigestible is about the claim of the
applicant that he had absolutely no knowledge about the litigation. He
has not come with the case that he had strained relationship with his
father since prior to 1994 i.e. the institution of the suit by respondent
No.2 against his father. It is also not his case that he never visited his
native place as well as the place where the father was staying during all
those years till he was discharged from his Military service and even till
2017. It is hard to believe that the father would not have disclosed him
CA-559-2020 (civil).odt
about the litigation he is facing. The application is not filed with bona
fide intention. Taking into consideration the concurrent finding, it
appears that this is an attempt to create multiplicity in the litigation and,
therefore, the application deserves to be rejected. Accordingly, it is
rejected with cost.
[SMT. VIBHA KANKANWADI, J.]
scm
