Sampat Chimaji Thokal Died Lrs. ... vs Dadabhau Chimaji Thokal And ...
2021 Latest Caselaw 14966 Bom

                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD


                           907 SECOND APPEAL NO.17 OF 2020


    SAMPAT CHIMAJI THOKAL, DIED, THROUGH LRS. SANJAY AND OTHERS
                                        VERSUS
                      DADABHAU CHIMAJI THOKAL AND OTHERS
                                           ...
      Mr. P.R. Katneshwarkar, Advocate h/f Mr. A.G. Ambetkar, Advocate for
                                       appellants
Mr. S.S. Bora, Advocate h/f Mr. V.V. Tarde, Advocate for respondent Nos.1a to
                                       1e and 3
                                           ...

                                     CORAM :      SMT. VIBHA KANKANWADI, J.

                                     DATE :       13th OCTOBER, 2021


PER COURT :



1                Present Second Appeal has been filed by the original defendant

Nos.1 to 4 to challenge the Judgment and Decree passed in Regular Civil

Appeal No.264/1019 with Cross-Objection dated 02.11.2019 passed by

learned Adhoc District Judge-4, Ahmednagar, thereby partly allowing the

appeal filed by the present respondents-original plaintiffs and modifying the

Judgment and Decree passed in Regular Civil Suit No.607/2011 dated

06.08.2017 by learned Civil Judge Senior Division, Ahmednagar.

                                          2                                        SA_17_2020



2              Heard learned Advocate Mr. P.R. Katneshwarkar holding for

learned Advocate Mr. A.G. Ambetkar for appellants and learned Advocate Mr.

S.S. Bora holding for learned Advocate Mr. V.V. Tarde for respondent Nos.1a

to 1e and 3. In order to cut short, it can be said that they have argued in

support of their respective contentions.

3 It is to be noted that the present respondents-original plaintiffs

had filed Regular Civil Suit No.607/2011 for partition and separate

possession of the suit properties. Those suit properties were described in

para No.1A and 1B of the plaint. The relationship between the parties is not

denied and there was also no dispute that the suit properties at Sr.Nos.1 to 4

i.e. bearing Gat No.140, 188, 375 and 378 were the ancestral properties. It

appears that it is also not in dispute that those properties came to plaintiff

No.1 and deceased Sampat from their father Chimaji, so also, the house

properties described in para No.1B of the plaint were the ancestral

properties. The dispute was regarding the suit properties at Sr. Nos.5 to 10 in

para No.1A of the plaint.

4 The plaintiffs had come with a case that the suit properties at Sr.

Nos.5 and 6 were purchased by them out of their own income and, therefore,

they claimed that those are their self acquired properties. Further, it was also

stated that the suit properties at Sr.Nos.7 and 8 i.e. Gat Nos.367/3 and 367/4

3 SA_17_2020

were purchased by them from their income in the name of defendant Nos.1

and 3. They claimed that those properties are the joint family properties,

though the sale deeds are in the name of defendant Nos.1 and 3. Properties

at Sr.Nos.9 and 10 i.e. Gat Nos.370/2 and 371 are also the joint family

properties. They say that they were also purchased from their salary as well

as joint family income and the sale deeds were got executed nominally in the

name of defendant Nos.1 and 2. Therefore, they sought partition and

separate possession from all the suit properties.

5 The defendant Nos.4 and 5 did not file written statement. Other

defendants filed separate written statement and denied that the suit property

Nos.5 and 6 are the self acquired properties of the plaintiffs. It was then

contended that the original defendant No.1 was in defence service.

Agricultural land bearing Gat No.229 situated at village Pimpalgaon Kawda

was purchased out of his income, but on the request of his father Chimaji the

sale deed was got executed jointly in the name of plaintiff No.1 and himself.

Thereafter, that property was sold in the year 1989 and the sale proceeds

were utilized for purchasing Gat No.367 in the name of plaintiffs and

defendants. Therefore, according to the defendants, the suit properties at

Sr.Nos.5 and 8 are the joint family properties. They totally denied that the

suit property at Sr. Nos.9 and 10 are the joint family properties. According to

4 SA_17_2020

them, those are the self acquired properties of the defendants and not

available for partition.

6 On these rival pleadings parties went to trial and after

considering the evidence the learned Trial Judge held that the suit properties

Gat No.367/3, 367/4, 370/2 and 371 are the joint family properties of the

plaintiffs and the defendants. Plaintiffs have failed to prove that the suit

properties No.367/1 and 367/2 are their self acquired properties. It was held

that the plaintiffs are not entitled to the relief of declaration in that respect.

It was held that plaintiff No.1 has half share in the suit properties mentioned

in Issue No.1. Accordingly, the suit was partly decreed. It was declared that

the suit property Nos.1 to 8 described in para No.1A and the house properties

described in para No.1B of the plaint are the joint family properties and the

plaintiff No.1 is having ½ share, whereas defendant Nos.1A to 3 have 1/8 th

share each. The suit was dismissed in respect of lands described at Sr.No.9

and 10 in para No.1A of the plaint.

7 Original plaintiffs preferred Regular Civil Appeal No.264/2017.

The said appeal was heard by the learned Adhoc District Judge-4,

Ahmednagar. It is to be noted that the original defendant Nos.1 to 3 i.e.

respondent Nos.1 to 3 in the appeal had filed Cross-Objection on 13.11.2017.

After hearing both sides the appeal was partly allowed. The Cross-Objection

5 SA_17_2020

was dismissed. The Judgment and Decree passed by the learned Trial Judge

was confirmed and modified in respect of land Gat No.371 by holding that it

is joint family property and the plaintiff No.1 has ½ share in the same.

Hence, this Second Appeal.

8 It will not be out of place to mention here that while making

submissions the learned Advocate Mr. S.S. Bora holding for learned Advocate

Mr. V.V. Tarde for respondent Nos.1a to 1e and 3 submitted that recently even

the respondents have filed Second Appeal with condonation of delay

application. That proceeding can be considered separately, if at all the delay

would be condoned. For the purpose of this appeal it should not wait for the

admission.

9 It has been submitted by learned Advocate Mr. P.R.

Katneshwarkar holding for learned Advocate Mr. A.G. Ambetkar for the

appellants that the cross-objections have been discarded by the learned

Appellate Court on the ground that it was barred by limitation. According to

the learned First Appellate Court, the notice Exh.7 of the appeal was served

on the respondents on 10.10.2017 and, therefore, it was incumbent upon the

respondents to tender the cross-objections on or before 10.11.2017.

However, those cross-objections were filed on 13.11.2017. At no earlier point

of time the objection was raised in respect of limitation and it has been only

6 SA_17_2020

decided at the time of final hearing. It was then submitted that even by plain

reading of Order 41 Rule 22 of the Code of Civil Procedure, 1908 the

appellants, who were the respondents before the First Appellate Court could

have raised their objections orally and it was not necessary for them to file

cross-objection. There would be, at the most, if the calculation of the First

Appellate Court is taken into consideration three days delay, however, as

regards the limitation is concerned in the cross-objection, it was stated that

the respondents had received the notices of the appeal on 24.10.2017 and

the first date of the appearance given to the respondents in the notices issued

by the First Appellate Court was 13.11.2017, that means, on the day of first

appearance itself. The cross-objections were filed by the respondents. To this

point the learned Advocate Mr. S.S. Bora submitted that the cross-objections

were filed beyond the period of limitation and the reasons given by the First

Appellate Court are correct. Under such circumstance, no substantial

question of law is arising on that count.

10 As regards the scope and permissibility of filing cross-objections

as per provisions of Order 41 Rule 22 of CPC is concerned, reliance can be

placed on Harvinder Singh vs. Paramjeet Singh and others, 2014 (2) Mh.L.J.

126, wherein after the amendment of CPC in 1976 what is permissible under

sub rule (1) of the same to file a cross-objection against a finding has been

7 SA_17_2020

considered. In that case the reliance was placed on the decision in Banarasi

and others vs. Ram Phal, AIR 2003 SC 1989. Taking into consideration the

ratio therein it is then required to be seen, as to whether it was necessary for

the respondents to raise the written cross-objections or not. So also, reliance

can also be placed on Mahadeo Govind Gharge and others vs. Special Land

Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka, 2011 (5)

Mh.L.J., 532. It is, therefore, required to be seen, as to whether the ratio laid

down in these authorities have been followed by the First Apellate Court and,

therefore, substantial question of law is arising in this case on that count.

11 Now, as regards the properties which are in dispute is concerned,

as regards the property at Sr. Nos.9 and 10 the defendants contended that it

is the self acquired property of the defendants; whereas suit property at Sr.

Nos.5 and 6 were contended as the self acquired properties of the plaintiffs.

The modification of decree by the First Appellate Court is in respect of Gat

No.371. The learned Advocate Mr. S.S. Bora pointed out Point Nos.1 and 2

framed by the First Appellate Court and the findings thereto. Those points

were in respect of Gat No.367/3 and 367/4. He then pointed out the appeal

memo before the First Appellate Court and it was pointed out that it was in

respect of only 370/2, 371 and 367/1, 367/2. However, the point, that was

framed, was in respect of different property which was not in dispute or

8 SA_17_2020

under challenge. Yet, the findings are given in negative i.e. against the

plaintiff No.1. There was no point framed in respect of Gat No.367/1 and

367/2. Learned Advocate Mr. P.R. Katneshwarkar submits that the Trial Court

had considered the evidence in detail in respect of these properties, which

were standing in the name of defendants, though the plaintiffs contended

that those are the self acquired properties of the plaintiffs. Defendant No.1

had produced on record evidence to show that he had separate income and,

therefore, he could have purchased those properties. Whether there was

sufficient nucleus in respect of the plaintiffs and defendants to purchase

those properties in each others name has not been properly considered.

12 It is to be noted that the plaintiffs were contending that certain

properties were self acquired properties of the plaintiffs and the defendants

were contending that certain properties were the self acquired properties of

the defendants. Admittedly, the properties, which were purchased by the

plaintiffs in the name of defendants, as alleged, whether could have been

seen from the angle, as to who was the Karta of the family and whether there

could have been a scope to purchase the property in the name of member of

joint family and whether it was for the benefit of the family. In order to get it

out of clutches of the definition 'Benami transaction' as is defined under The

Prohibition of Benami Property Transactions Act, 1988. Admittedly, these

9 SA_17_2020

purchases are after coming into force of this Act. As per Section 2(9) of The

Prohibition of Benami Property Transactions Act, 1988, "Benami transaction"

means, -

A)     a transaction or an arrangement -


         (a)      where a property is transferred to, or is held by, a person,

and the consideration for such property has been provided, or paid by, another person; and

(b) the property is held for the immediate or future benefit, direct or indirect, of the person who has provided the consideration, except when the property is held by -

(i) a Karta, or a member of a Hindu undivided family, as the case may be, and the property is held for his benefit or benefit of other members in the family and the consideration for such property has been provided or paid out of the known sources of the Hindu undivided family; .............

Therefore, definitely substantial questions of law are arising in

this case as the discussion made by both the Courts below appears to be not

in this direction.

13 Second Appeal stands admitted. Following are the substantial

questions of law :

                                           10                                          SA_17_2020



          1        Whether the First Appellate Court was justified in

discarding the cross-objections on the point of limitation by not considering the decisions in 2014 (2) Mh.L.J., 126, AIR 2003 SC 1989 and 2011 (5) Mh.L.J., 532 (supra) ?

2 Whether the suit properties bearing Gat Nos.367/3 and 367/4, 370 and 371 were the joint family properties ?

          3        Whether interference is required ?




14               Issue notice to the respondents. Learned Advocate Mr. S.S. Bora

holding for learned Advocate Mr. V.V. Tarde waives notice for respondent

Nos.1a to 1e and 3. It is clarified that learned Advocate Mr. S.S. Bora submits

that respondent No.2 and respondent No.1a are the same and, therefore, he

waives notice for the respondent No.2.

15               Call Record and Proceedings.




                                                ( Smt. Vibha Kankanwadi, J. )




agd