Bombay High Court
Manga Bhoju Rajput Died Thr Lrs ... vs Chandanbai Lotansing Rajput And ... on 6 September, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.300 OF 2021
MANGA BHOJU RAJPUT, DECEASED, THROUGH LRS RAJKORBAI AND ORS
VERSUS
CHANDANBAI LOTANSING RAJPUT AND ANOTHER
...
Mr. R.S. Wani, Advocate for appellants
Mr. S.V. Natu, Advocate for the respondent No.1
...
CORAM : SMT. VIBHA KANKANWADI, J.
RESERVED ON : 09th AUGUST, 2021
PRONOUNCED ON : 06th SEPTEMBER, 2021.
ORDER :
1 Present appeal has been filed by the original defendant Nos.1A
to 1D. Present respondent No.1-original plaintiff had filed Regular Civil Suit
No.4/2000 before Civil Judge Senior Division, Nandurbar for partition,
separate possession and mesne profits. The said suit came to be partly
decreed on 09.12.2010. It was declared that the plaintiff and defendant No.1
(his L.Rs. 1A to 1D) are entitled to get 5/12 th share each and the defendant
Nos.2 and 3 are entitled to get 1/12th share each in the suit properties. Claim
for the partition of the movable properties was rejected and separate inquiry
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in respect of mesne profits was ordered. The said Judgment and Decree was
challenged by the present appellants in Regular Civil Appeal No.7/2011
before the District Court, Nandurbar. The same has been heard by learned
Adhoc District Judge-1, Nandurbar. It came to be dismissed on 26.02.2021.
Hence, the present appellants are before this Court in Second Appeal.
2 Heard learned Advocate Mr. R.S. Wani for appellants and learned
Advocate Mr. S.V. Natu for the respondent No.1.
3 It has been vehemently submitted on behalf of the appellants
that the learned First Appellate Court has given a total cryptic Judgment and
has not dealt with any facts of the case and the law points involved in its
perspective. There is absolutely no adherence of Order XLI Rule 31 of the
Code of Civil Procedure, 1908. The learned Advocate has taken this Court
through the points framed by the First Appellate Court and it is submitted
that merely by putting, whether the Lower Court has ordered in giving
findings to the particular issue is the formulation of the language which is not
expected, He relied on the decision in R.S. Anjayya Gupta vs. Thippaiah Setty
and others, 2019 SAR (Civil) 801, wherein it has been held that after relying
on earlier decisions of the Hon'ble Apex Court held that they are reiterating
the settled legal position in C. Venkata Swamy vs. H.N. Shivanna (Dead) by
Legal Representative and another, (2018) 1 SCC 604 regarding the purport of
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power of the Appellate Court coupled with its duty, under Section 96 of the
Code, while deciding the first appeal, by adverting to decisions in Kurian
Chacko vs. Varkey Ouseph, AIR 1969 Kerala 316, Santosh Hazari vs.
Purushottam Tiwari, (2001) 3 SCC 179, Jagannath vs. Arulappa and another,
(2005) 12 SCC 303, B.V. Nagesh and another vs. H.V. Sreenivasa Murthy,
(2010) 13 SCC 530, State Bank of India and another vs. Emmsons
International Limited and another, (2011) 12 SCC 174 and Union of India vs.
K.V. Lakshman and others, (2016) 13 SCC 124, it was submitted that the
question before the Courts below was, as to whether the plaintiff has proved
that she is the legally wedded wife of deceased Lotansing Rajput, who was
the younger brother of defendant No.1. When the status of a party was
challenged, then while discussing the said point, there ought to have been a
thorough discussion by the First Appellate Court also in respect of the oral
evidence that has been adduced, that is, totally missing in this case. Unless
the said status has been fixed or adjudicated, there could not have been a
partition. Further, there was a question that after the issues were framed the
defendant No.1 expired and his legal representatives were brought on record.
They had given separate written statement, which the learned Trial Judge
found to be inconsistent with the original defendant No.1 and, therefore, he
straight away observed that he is not taking into consideration the defence
that has been raised by the legal representatives of the deceased defendant
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No.1 on record. As regards striking of pleading is concerned, it is to be noted
that those legal representatives were brought on record after the death of
defendant No.1, who had then filed additional written statement. That
additional written statement was not objected by the plaintiff. So also, their
participation in the process has been objected. They were allowed to lead
evidence and no opportunity was given by the learned Trial Judge before
striking out their pleadings. It is only at the time of Judgment the said
striking out has been done. He relied on the decision in Abdul Razak (Dead)
through L.Rs. and others vs. Mangesh Rajaram Wagle and others, (2010) 2
SCC 432, wherein it has been held that if it is found that the legal
representatives are not placing inconsistent written statement than to the
defence that was taken by their predecessor, then they can be allowed to do
so. Therefore, when without giving any opportunity to the defendants to
show how they have not placed any inconsistent plea, the learned Trial Court
ought not to have struck out their pleadings. This fact has not been
considered at all by the First Appellate Court. Therefore, substantial
questions of law are arising in this case.
4 Per contra, the learned Advocate appearing for the respondent
No.1-original plaintiff submitted that the Judgment of the First Appellate
Court is adhered to the requirements of Section 96 of the Code of Civil
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Procedure. In Santosh Hazari vs. Purushottam Tiwari (deceased) by L.Rs.,
(2001) 3 SCC 179, it has been observed that, where view of the Trial Court is
upheld, the First Appellate Court need not go into detail, but an expression of
general agreement should not become a way to avoid the duty cast on such
Court to apply its mind consciously when giving Judgment . First Appellate
Court while reversing a finding of fact must assign its own reasons for a
different finding. Here, no different finding was given and, therefore, when
the First Appellate Court in this case has considered as to why he is
supporting the reasons given by the Trial Court, there ought not to have been
a detailed Judgment. The facts and evidence has been properly assessed by
both the Courts below. No substantial question of law is arising in this case.
5 At the outset, it is to be noted that the plaintiff was claiming her
right in the suit property under the status of widow of one Lotansing Rajput,
who was the younger brother of defendant No.1. When the said fact was
challenged, issue to the effect that, whether she is a legally wedded wife of
deceased Lotansingh, was framed. Thereafter, when the defendant No.1 had
taken defence that certain suit property was his self acquired property, even
in respect of that, issues were specifically framed. Both the parties have led
oral as well as documentary evidence. Issues came to be framed at Exh.15,
however, it appears that later on they have been recast. Issue Nos.4 and 5
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were framed after the written statement was filed by the legal representatives
of the defendant No.1 at Exh.89. The learned Trial Judge, without giving any
opportunity to the legal representatives of defendant No.1 it appears that
went on to observe that since defendant No.1 had not come with a case that
certain property was self acquired property of defendant No.1, the plea that
was raised by them being inconsistent cannot be considered. No doubt, it is
said that even otherwise there is absolutely no evidence led by them,
however, whether such short cut can be adopted, is a question. Further, in
view of decision in Abdul Razak (supra) it was required to be seen, as to
whether the legal representatives of the deceased defendant No.1 were
establishing any inconsistent plea than the plea raised by their predecessor.
This fact ought to have been considered by the learned First Appellate Court.
6 The Judgment of the First Appellate Court appears to be cryptic.
So many authorities have been relied on behalf of both sides. Whether the
points for determination have drafted, raises question. Even if we consider it
liberally; yet, whether the Judgment of the First Appellate Court is complying
to the requirements under Santosh Hazari (supra) and R.S. Anjayya Gupta
(supra), is required to be considered. Definitely, case is made out to admit
the Second Appeal, as it is raising substantial questions of law, as
contemplated under Section 100 of the Code of Civil Procedure, 1908.
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Second Appeal stands admitted. Following are the substantial questions of
law.
1 Whether the Judgment of the First Appellate Court is
complying with the requirements of Section 96 and Order XLI
Rule 31 of the Code of Civil Procedure ?
2 Whether the learned Trial Judge was justified in ignoring
the pleadings of the legal representatives of defendant No.1
while considering issue Nos.4 and 5 before it ?
3 Whether the plaintiff was legally wedded wife of deceased
Lotansing ?
4 Whether the order of the First Appellate Court in allowing
the appellants before him to join the daughters of plaintiff in the
original suit as additional plaintiffs and refusing to give a chance
to the defendants to file additional written statement requires
matter to be remanded ?
5 Whether the claim of partition of two daughters of the
plaintiff could relate back to the date of the suit and make the
suit within limitation as against them ?
6 Whether the suit could have proceeded without joining
necessary parties before the Trial Court ?
7 Whether the Courts were justified in carving out share of
the plaintiffs in house properties as well as Gat No.208, when no
such prayer was made in the plaint ?
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7 Issue notice to the respondents after admission. Learned
Advocate Mr. S.V. Natu waives notice for the respondent No.1. Notice of
respondent No.2 is made returnable on 04.10.2021.
8 Call Record and Proceedings ?
( Smt. Vibha Kankanwadi, J. )
agd
