Bombay High Court
Lalzadi Wd/O Shivlal Bhagat And ... vs Amrutlal S/O Sahadeo Shahu And ... on 16 September, 2021
Bench: Avinash G. Gharote
10 .wp.1498.2021 & 10.A.1499.2021.........odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.1498/2021
1. Smt. Lalzadi Wd/o Shivlal Bhagat,
Aged 59 years, Occu.: Household,
2. Shri Shyam s/o Shivlal Bhagat,
Aged 35 years, Occ. Business,
3. Shri Ram S/o Shivlal Bhagat,
Aged 33 years, Occ. Business,
4. Gopal s/o Shivlal Bhagat,
Aged 32 years, Occ. Business,
All R/o. Chuna Bhatti, Near Bus Stop ..... PETITIONERS
Kh. No.176, Panchgaon, Tah. Umred, (Ori. Plaintiff)
Distt. Nagpur. (Appellants in RCA no.439/19)
// VERSUS //
1. Shri Amrutlal S/o Sahadeo Shahu
Aged 58 years, Occ. Cultivator,
R/o Plot No.1, Sainagar, Dighori,
Ring Road Chowk, Nagpur.
2. Shri Chotelal S/o Sahadeo Shahu,
Aged 54 years, Occu. Cultivator,
R/o Plot No.218, Ingle Nagar, .... RESPONDENTS
Hudkeshwar Road, Nagpur. (Ori. Defendants)
(Respondents in R.C.A.no.439/19)
WITH
WRIT PETITION NO.1499/2021
1. Smt. Lalzadi Wd/o Shivlal Bhagat,
Aged 59 years, Occu.: Household,
2. Shri Shyam s/o Shivlal Bhagat,
Aged 35 years, Occ. Business,
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10 .wp.1498.2021 & 10.A.1499.2021.........odt
2
3. Shri Ram S/o Shivlal Bhagat,
Aged 33 years, Occ. Business,
4. Gopal s/o Shivlal Bhagat,
Aged 32 years, Occ. Business,
All R/o. Chuna Bhatti, Near Bus Stop ..... PETITIONERS
Kh. No.176, Panchgaon, Tah. Umred, (Ori. Plaintiff)
Distt. Nagpur. (Appellants in RCA no.440/19)
// VERSUS //
1. Shri Amrutlal S/o Sahadeo Shahu
Aged 58 years, Occ. Cultivator,
R/o Plot No.1, Sainagar, Dighori,
Ring Road Chowk, Nagpur.
2. Shri Chotelal S/o Sahadeo Shahu,
Aged 54 years, Occu. Cultivator,
R/o Plot No.218, Ingle Nagar, .... RESPONDENTS
Hudkeshwar Road, Nagpur. (Ori. Defendants)
(Respondents in R.C.A.no.440/19)
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Mr. Sawan Alaspurkar, Advocate for petitoiners in both petitoins.
Mr. H. D. Sahu, Advocate for respondents in both petitions.
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CORAM : AVINASH G. GHAROTE, J.
DATED : 16/09/2021
ORAL JUDGMENT :
Heard Mr. Alaspurkar, learned Counsel for the petitioners
and Mr. Sahu, learned Counsel for the respondents.
2] Rule. Rule made returnable forthwith.
3] Heard finally by consent of the learned counsel appearing
for the parties.
10 .wp.1498.2021 & 10.A.1499.2021.........odt
4] RCS No.21 of 2015 was filed by the petitioners/plaintiffs for
a declaration and permanent injunction, in which the
respondents/defendants filed a Counter Claim for possession. The suit
was dismissed and Counter Claim was allowed, against which two
appeals are filed RCA No.439 of 2019 and RCA No. 440 of 2019.
5] In the above two appeals an application for amendment
came to be filed, when the appeal was fixed for final arguments,
proposing to amend the plaint, on the basis of an application for
exemption from personal appearance of Vidhya Zha, filed by one
Virendra Zha in criminal proceedings against Erstwhile owners of the
suit property, Virendra Zha and Vidhya Zha, who had executed the Sale
Deed dated 1.12.2014 in favour of the defendants/respondents, to the
effect that Vidhya Zha be exempted from personal appearance on
9.1.2020 on the ground that she was mentally ill. Taking cue of this
statement, the plaint was sought to be amended by laying a challenge to
the Sale Deed dated 1.12.2014. The application for amendment,
however, came to be rejected by the learned Appellate Court by the
impugned order 24.2.2021, holding that since there has been no
challenge to the Sale Deed dated 1.12.2014 by the vendors, the issue of
the legality and validity was not germane for deciding the real
controversy between the parties.
10 .wp.1498.2021 & 10.A.1499.2021.........odt
6] Mr. Alaspurkar, learned Counsel for the petitioners submits
that the statement regarding mental illness of one of the vendors to the
Sale Deed dated 1.12.2014, directly affects the title of the defendants
and therefore, was a question essential to be decided and since this fact
was noticed for the first time at the final arguments of the appeal, the
application was clearly maintainable.
7] Mr. Sahu, learned Counsel for the respondents opposes the
petitions.
8] It is an admitted position that the appellant does not have
any right title or interest to the suit property, which was owned by
Virendra Zha and his sister Vidhya Zha, who have transferred the same
to the respondents by the Sale Deed dated 1.12.2014. Before the Trial
Court one of the plaintiff, namely, Shri Shyam Shivlal Bhagat (petitioner
no.2) is claimed to have admitted the Sale Deed and on the basis of said
admission, judgment has been passed by the learned Trial Court, which
is under challenge. A further plea has been raised by the
plaintiffs/petitioners that they have become owners by way of adverse
possession of the suit property. This would clearly indicate that the
petitioners / plaintiffs did not have any legal right in the property in
question and therefore, also have no locus to challenge the Sale Deed
dated dated 1.12.2014. The proposed amendment has rightly been held
by the learned Appellate Court, not to be essential for determining the
10 .wp.1498.2021 & 10.A.1499.2021.........odt
real controversy between the parties which is relating to the eviction of
the petitioners from the suit premises. That being the position, I do not
see any infirmity in the impugned orders. The petitions therefore, are
without any merit and accordingly are dismissed.
9] Rule is discharged.
10] Needless to say that the lower Court shall decide the appeal
before it without being influenced by the observations of this Court and
shall make an endeavour to decide the appeals, as expeditiously as
possible.
(AVINASH G. GHAROTE, J)
Sarkate.
