Bombay High Court
Dadarao Bhaurao Kshirsagar Lrs ... vs Vimalbai Rajaram More And Others on 30 March, 2021
Bench: Anil S. Kilor
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 584 OF 2018
1. Dadarao S/o. Bhaurao Kshirsagar,
Deceased, Through His Lrs -
1-a) Pralhad S/o. Dadarao Kshirsagar,
Age 56 years, Occu. Business,
R/o. Poonam Galli, Lonarpura,
Beed, District Beed.
1-b) Bharat s/o. Dadarao Kshirsagar,
Age 51 years, Occu. Service,
R/o. As above.
1-c) Sharad s/o. Dadarao Kshirsagar,
Age 46 years, Occu. Service,
R/o. Kalegaon Haveli,
Taluka and District Beed.
2. Baban S/o. Dadarao Kshirsagar,
Died, Through His LRs-
2-a) Yenubai w/o. Baban Kshirsagar,
Age 52 years, Occu.
2-b) Santosh S/o. Baban Kshirsagar,
Age 37 years, Occu.
2-c) Prakash S/o. Baban Kshirsagar,
Age 35 years, Occu.
All R/o :
3) Ashok s/o. Dadarao Kshirsagar,
Died. Through LRs-
3-a) Anil s/o. Ashok Kshirsagar,
Age 31 years, Occu.
3-b) Kusum Ashok Kshirsagar,
Age 50 years, Occu.
4. Prayagbai w/o. Nivrutti Ghorpade,
Age 31 years, Occu.
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5. Bansi s/o. Bhaurao Kshirsagar,
Deceased, through LRs-
5-a) Keshav s/o. Bansi Kshirsagar,
Age 35 years, Occu.
5-b) Narayan s/o. Bansi Kshirsagar,
Age 33 years, Occu.
6. Sadashiv s/o. Barku Kshirsagar,
Age 41 years, Occu. Labour,
R/o. Poonam Galli, Peth, Beed,
District Beed.
7. Dattatraya s/o. Barku Kshirsagar,
Age 39 years, Occu.
8. Ganesh s/o. Barku Kshirsagar,
Age 36 years, Occu.
9. Shobha Ganesh Kshirsagar,
Age 34 years, Occu.
10. Madan s/o. Barku Kshirsagar,
Age 33 years, Occu.
11. Mandodari w/o. Barku Kshirsagar,
Age 56 years, Occu.
12. Maruti S/o. Bhaurao Kshirsagar,
Deceased, Through L.R.
12-a) Arjun Maruti Kshirsagar,
Age 48 years, Occu. Agri.,
All Occu. Agri., All R/o. Beed,
Taluka and District Beed. .. Appellants
Versus
1. Vimalbai w/o. Rajaram More,
Age 45 years, Occu. Household,
R/o. Poonam Gali, Lonarpura,
District Beed.
2. Vidyabai Raghunathrao Chavan,
Age 40 years, Occu. Household,
R/o. Shahunagar, Beed,
District Beed.
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3. Sharadabai Bhimrao Fartade,
Age 35 years, Occu. Household,
R/o. Poonam Galli, Lonarpura,
District Beed.
4. Masu s/o. Vishnu Kshirsagar,
Deceased.
5. Chandrakala d/o. Vishnu Kshirsagar,
Age 24 years, Occu. Household,
R/o. As above.
6. Ram S/o. Vishnu Kshirsagar,
Age 37 years, Occu. Labour,
R/o. Balbhim nagar, Near Water
Reservoir, Beed, District Beed.
7. Jayshree d/o. Vishnu Kshirsagar,
Age 32 years, Occu. Household,
R/o. As above.
8. Ramdash s/o. Rajaram Mane,
Age 40 years, Occu. Household,
R/o. As above.
9. Jalikhan Rajak KhanPathan,
Age 35 years, Occu. Business,
R/o. Idgah Road, Beed,
Taluka and District Beed.
10. Jankabai w/o. Bansi Kshirsagar,
Age 71 years, Occu.
R/o. Kulom galli, Beed,
Taluka and District Beed.
11. Asha Rushikesh Magar,
Age 41 years, Occu.
R/o. As above.
12. Devidas Bhanudas Kshirsagar,
Age 46 years, Occu.
R/o. Punam Galli, Beed,
Taluka and District Beed.
13. Radhabai w/o. Bhanudas Kshirsagar,
Age 71 years, Occu.
R/o. As above.
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14. Kasturabai Rambhau Jogdand,
Age 61 years, Occu.
R/o. As above. .. Respondents
...
Mr. N. L. Jadhav, Advocate for appellants
Mr. V. P. Sawant, Advocate for respondents no. 1 to 3
Respondents no. 5, 6, 7, 9, 11 and 12 served.
Respondent no. 4 died.
The appeal is dismissed against Respondents No. 8, 10, 13 and 14
as per Court's order dated 10-10-2018.
...
CORAM : ANIL S. KILOR, J.
DATE : 30th MARCH, 2021
ORAL ORDER:-
This appeal is preferred by the original defendants
challenging the Judgment and Decree, dated 7 th December, 2017,
passed by the learned District Judge-2, Beed, in Regular Civil
Appeal No. 36 of 2009, upholding the Judgment and Decree dated
14th July, 2006 passed by the 2nd Joint Civil Judge, Senior Division,
Beed, in Regular Civil Suit No. 127 of 1992, decreeing the suit for
partition and separate possession.
2. I have heard learned counsel for the respective parties.
3. Brief facts of the present case are as follows (Parties are
referred as per their status in the suit.)
The plaintiffs filed a suit for partition of the suit property
originally owned by one Janu Kshirsagar. Bhau and Ramrao were
sons of Janu Kshirsagar. Plaintiffs are the daughters of Krishnabai,
who was the only legal heirs of Ramrao, who expired on 15 th
November, 1961. As such, the plaintiffs claim partition and
separate possession in the suit property.
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4. The defendants No. 1 to 12 filed their written statement
admitting the ownership of Janu Kshirsagar and also that he had
two sons namely Bhau and Ramrao.
5. The suit was decreed in favour of the plaintiffs holding
them as entitled for their respective shares.
6. The appellants, herein, are the legal heirs of the
defendant No.1 Dadarao, who preferred Regular Civil Appeal,
challenging the decree, dated 14th July, 2006, passed by the learned
Trial Court.
7. The learned lower Appellate Court dismissed the appeal
and confirmed the Judgment and Decree of the learned trial Court.
The Judgment and Decree, dated 7th December, 2017 passed by the
learned District Judge-2, Beed, in Regular Civil Appeal No. 36 of
2009 is under challenge in the present appeal.
8. The learned counsel appearing for the appellants
submits that after the death of the lawyer appearing for defendant
No. 1, during pendency of the suit, on 11 th August, 2005, no notices
were issued to the appellants, and thereby, the opportunity to
cross-examine the plaintiffs or opportunity of being heard before
deciding the suit was denied to the appellants. It is submitted that,
therefore, the impugned Judgment and Decree is erroneous.
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9. The learned counsel for the appellants has not raised
any other grounds while arguing this appeal.
10. After going through the record, it is revealed that, the
plaintiffs have closed their evidence on 12 th January, 2005,
whereas, the learned counsel who was appearing on behalf of the
appellant/defendant No. 1 died on 11th August, 2005 i.e. after about
eight months of closing of the evidence by the plaintiffs. Nothing
has been brought on record by the appellants to show that they
were continuously in contact with their counsel and they have
diligently attended the proceedings on important dates of the suit.
11. In the circumstances, as it appears from record that,
though sufficient opportunity was given to the defendant No. 1, the
same had not been availed by him, no error is committed by the
lower Appellate Court as well as the learned Trial Court, while
decreeing the suit on the basis of oral as well as documentary
evidence available on record. In that view of the matter, no
substantial question of law is involved in the present appeal.
12. Accordingly, the Second Appeal is dismissed. No order
as to costs.
( ANIL S. KILOR )
JUDGE
mtk
