Bombay High Court
Shivaji Raghunath Kovhale vs Shrikant Raghunath Kovhale And ... on 15 September, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.342 OF 2021
WITH
CIVIL APPLICATION NO.11056 OF 2012
SHIVAJI RAGHUNATH KOVHALE
VERSUS
SHRIKANT RAGHUNATH KOVHALE AND OTHERS
...
Mr. B.A. Shinde, Advocate for the appellant
Mr. D.P. Deshpande, Advocate for respondent No.1
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 15th SEPTEMBER, 2021
ORDER :
1 Present appeal has been filed by the original defendant No.1
challenging the Judgment and Decree passed in Regular Civil Appeal
No.139/2007 by learned Principal District Judge, Latur. The said appeal,
which was filed by the original plaintiff, came to be allowed on 14.02.2012.
The Judgment and Decree of dismissal of the claim of the plaintiff for
partition of field Sy.No.121/A situated at village Haregaon, Tq. Ausa, Dist.
Latur passed in Regular Civil Suit No.34/1996 by learned Civil Judge Junior
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Division, Ausa was set aside and the share of the plaintiff as well as
defendants were carved out from that property.
2 Present respondent No.1 is the original plaintiff, who had filed
Regular Civil Suit No.385/1996 before Civil Judge Junior Division, Ausa for
partition and separate possession. The suit properties were - Sy.No.121/A
admeasuring 08 Acres 30 Gunthas, Sy.No.4/B admeasuring 29 Gunthas and
Sy.No.55 admeasuring 04 Acres 01 Guntha situated at village Haregaon, Tq.
Ausa. The learned Trial Judge had held that the plaintiff has proved that the
suit properties are joint family properties of plaintiff and defendants. It was
also held that plaintiff had proved that defendant No.1 is taking undue
advantage of his name over Sy.No.121/A over 08 Acres 30 Gunthas. It was
then also held that the defendant No.1 is denying to give share to the plaintiff
and the plaintiff is entitled to get partition and separate possession.
However, there appears to be a previous litigation i.e. Regular Civil Suit
No.34/1996 between one Rajendra and defendant No.1 and it has been held
to be binding on the parties to the suit. The suit came to be partly decreed.
Plaintiff's share has been carved out from Sy.No.4/B and 55 only and there is
no specific mention that the claim of the plaintiff to separate his share from
Sy.No.121/A has been dismissed, but when that property has not been
directed to be divided and separated as per the shares cared out, then it is
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being to have been refused. Hence, the original plaintiff filed Regular Civil
Appeal No.139/2007 and it has been allowed, as aforesaid. Now, the
defendant No.1 has filed present Second Appeal.
3 Heard learned Advocate Mr. B.A. Shinde for the appellant and
learned Advocate Mr. D.P. Deshpande for the respondent No.1. In order to
cut short, it can be said that they have argued in support of their respective
contentions.
4 At the outset, it is to be noted that the defendant No.1 had not
challenged the findings to Issues No.1 to 4 given by the Trial Court. The
defendants have not challenged the decree of partition and separate
possession granted by the Trial Court in respect of agricultural land bearing
Sy.Nos.55 and 4/B, by way of cross appeal or cross objection. As aforesaid,
the defendant No.1-present appellant had not challenged the fact that the
Trial Court held that even Sy.No.121/A is the joint family property of plaintiff
and defendants, defendant No.1 is taking undue advantage of his name to
the said property and he is denying to give the share to plaintiff. It was
specifically held that the plaintiff is entitled to get partition and separate
possession and this is in respect of the properties; yet, it appears that the
learned Trial Judge made mistake in considering the effect of compromise
decree passed in Regular Civil Suit No.34/1996. It appears that the said suit
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was between the defendant Nos.7, 8 on one part and defendant No.1 on the
other. They had compromised the said case, but it appears that the learned
Trial Judge failed to consider that plaintiff was not party to the said suit.
Under the said circumstance, two Issues were framed by the learned Principal
District Judge, Latur, reflected in para No.34 of the Judgment. It has been
then stated that those are pure Issues of law and it is not necessary that those
issues should be referred back to the Trial Court for its findings. The Issues
were in respect of valuation of the property, which is now not material, in this
case. But then the first one was, as to whether the claim of the plaintiff
regarding decree passed in Regular Civil Suit No.34/1996 as void, illegal and
not binding on him, is within limitation ? The contentions in Regular Civil
Suit No.34/1996 were taken note of, wherein the defendant No.1 had
contended that somewhere in Gudi Padwa of 1995 the property was
partitioned between the two sons of defendant No.1 i.e. defendant Nos.7 and
8. The first and the foremost fact that has been considered is, when the
property was joint family property, then how the defendant No.1 without
adding the co-sharers to the partition could have partitioned the said
property between his sons. It is not in dispute that the said property i.e.
Sy.No.121/A was the property of their father Raghunath and Raghunath was
survived by plaintiff, defendant No.1, another brother defendant No.2,
mother and sisters. By suppression of all these facts, it appears that the said
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suit bearing Regular Civil Suit No.34/1996 was filed and a compromise
decree has been obtained. Definitely, when other co-sharers were not party
to that suit, that compromise decree is not binding on the plaintiff. In fact,
plaintiff was not even required to seek a declaration to that effect. The Trial
Judge committed mistake in holding that in absence of such a relief that the
said compromise decree is not binding on the plaintiff; the claim of the
plaintiff for effecting partition of that land cannot be decreed. The First
Appellate Court has passed a very well reasoned order, that too taking into
consideration all the legal aspects. No substantial questions of law are
arising in this case, as contemplated under Section 100 of the Code of Civil
Procedure, 1908. Hence, the Second Appeal stands dismissed. Pending Civil
Application No.11056 of 2012 stands disposed of.
( Smt. Vibha Kankanwadi, J. )
agd
