Hemlata Ashokrao Kulkarni And Ors vs Shardabai Balkrishna Kulkarni ...
2021 Latest Caselaw 13443 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                      SECOND APPEAL NO.596 OF 2016
                                  WITH
                   CIVIL APPLICATION NO.11992 OF 2016
                             IN SA/596/2016

               HEMLATA W/O ASHOKRAO KULKARNI
                           AND OTHERS
                             VERSUS
              SHARDABAI W/O BALKRISHNA KULKARNI
                           AND OTHERS
                                .....
       Advocate for Appellants/Applicants : Mr. H. V. Tungar
 Advocate for Respondents No.2-A, 2-B, 3 to 5 : Mr. D. P. Deshpande
 Advocate for Respondent No.1 : Mr. J. V. Deshpande and B.M.Magar
                                .....
                       CORAM : SMT.VIBHA KANKANWADI, J.
                       DATE : 20-09-2021.
ORDER :

1. Present appeal has been filed by the original plaintiff to challenge

the Judgment and decree passed in Regular Civil Appeal No.173 of

2015 by learned Adhoc District Judge-1, Beed, dated 04-07-2016

thereby dismissing their appeal wherein they were challenging the final

decree passed by learned Civil Judge, Senior Division, Beed in respect

of Special Civil Suit No.406 of 1998.

2. The predecessor of the present appellants Ashok Balkrishna

Kulkarni had filed partition suit i.e. Special Civil Suit No.406 of 1998

against his father, mother, brothers, sisters and others. The suit

property consisted of two agricultural lands and house property at

2 SA 596-2016, CA 11992-2016

village Palsingan Tq. Dist. Beed, but it appears that as regards the

two agricultural lands and one house property is concerned, they

were sold by father for legal necessity and, therefore, those

properties were excluded from the decree of partition. It was then

revealed that there were four house properties which were in fact

old house numbers converted into new house numbers thereby

increasing the number of the house properties situated at Beed were

held to be available for partition and the shares in the same were

carved out. Court Commissioner was appointed to suggest the

partition. It appears that the preliminary decree was passed on 09-

01-2007 and in fact the original defendant No.4, the mother, filed

application for passing final decree i.e. Miscellaneous Civil

Application No.96 of 2007. The Plaintiff and other defendants were

shown as non-applicants to the said civil application. It appears that

the non-applicants No.2 to 12 were duly served in the final decree

proceedings, however, in spite of receiving the notices they did not

appear. The matter proceeded ex-parte against them, however, it

appears that the non-applicant No.1 Ashok i.e. original plaintiff

appeared through Advocate and filed address memo. Both the

Courts below have held that the notice has been properly served on

non-applicant No.1 Ashok. Thereafter, the Court Commissioner was

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appointed, Advocate Mr. R. B. Dhande was appointed as

Commissioner, and after following the procedure, he submitted

report on 09-06-2008 suggesting the proposed partition. It appears

that the mother filed say to the said report, however, the non-

applicant Ashok failed to give say. Such failure has been recorded

by Court and then final order has been passed on 25-09-2008 by the

concerned Court regarding drawing up of the final decree as per the

partition suggested.

3. It also appears that the present appellants intended to

challenge the said final decree before the First Appellate Court,

however, there was delay of around 4 ½ years and, therefore, they

had filed application for condonation of delay. After the delay was

condoned, the first appeal was heard by learned Adhoc District

Judge-1, Beed. After hearing both sides, the appeal has been

dismissed. Hence, this second appeal.

4. Heard learned Advocate Mr. H. V. Tungar for appellants,

learned Advocate Mr. D. P. Deshpande for respondents No.2-A, 2-B,

3 to 5, and learned Advocate Mr. J. V. Deshpande and B. M. Magar

for respondent No.1.

4 SA 596-2016, CA 11992-2016

5. It has been vehemently submitted on behalf of the appellants

that if we consider the suggested partition then it can be seen that it

is absolutely not convenient, it rather causes harassment not only to

the appellants but to the respondents also. In fact, the suggestion

ought to have been with intention to cause minimum loss to the

parties. Further, there is no road made available to respondent No.1

Shardabai. Even the appellants also do not have any access to their

share as in the front side there are four shop structures. Due to the

ill-health Ashok could not take part in the final decree proceeding.

On the contrary, one opportunity should be made available to the

appellants who would put forth their objections and suggestions. By

drawing attention of this Court to the map, drawn by the Court

Commissioner, it has been pointed out that though it may suggest

that area wise, a proper distribution has been tried to be achieved,

however, neither the original plaintiff/decree holder nor the

defendant/judgment debtors No.2 and 4 are having proper access.

On the contrary, along with the appeal, the appellants had

suggested the division which could give access to all the share

holders. He, therefore, prayed for giving an opportunity before the

executing Court to put forth the say and submitted that substantial

questions of law are arising in this case as the convenience has not

5 SA 596-2016, CA 11992-2016

been seen by the Court Commissioner and both the Courts below

have also not considered the same.

6. The learned Advocate Mr. D. P. Deshpande, Mr. J. V.

Deshpande and B.M.Magar appearing for respondents supported the

reasons given by the Courts below and submitted that no substantial

questions of law are arising in this case. He further submitted that

the Court Commissioner had paid visit and made inspection with due

notice to Ashok, however, he did not take part. In fact, when thrice

the matter was fixed for inspection, it was got adjourned on the

request of Ashok and ultimate date of inspection 06-01-2008 was

fixed as per his convenience. His Advocate was also not present,

however, the present appellants No.1 and 3 were present at that

time. Thereafter, the report was submitted, the report shows that

all the necessary factors have been considered. The Court

Commissioner has given reasonable access to all the share holders

and, therefore, there is no necessity to change the arrangement that

has been made in the report.

7. At the outset, it is to be noted that it was original plaintiff who

had come to the Court for partition and separate possession. After

the suit was decreed it appears that he had not immediately taken

6 SA 596-2016, CA 11992-2016

action but then the mother who was original judgment debtor No.4

filed application for final decree. Original plaintiff appeared and it

appears that he had the knowledge about the appointment of Court

Commissioner to suggest the partition. It also appears that the

inspection has been done after getting a convenient date from

decree holder Ashok, still he remained absent. It has been tried to

be contended on behalf of the appellant that the learned First

Appellate Court has made wrong observations that Ashok has not

challenged the suggested partition by way of Court Commissioner's

report. In fact, the same Court had condoned the delay caused in

filing first appeal. The delay was around 4 ½ years and the main

reason that was stated in the application was that Ashok was not

keeping good health. He was suffering from arthritis and his heart

was weak. He ultimately expired on 05-08-2010. This Court does

not agree with the submission on behalf of the appellant that since

the delay has been condoned, the observations regarding absence of

Ashok at the time of inspection by the Court Commissioner and on

the report ought not to have been made. In fact the delay was for

the period of filing first appeal, that means after the final decree was

passed. Final decree has been passed on 25-09-2008 and the

inspection has been done on 06-01-2008, and the report has been

7 SA 596-2016, CA 11992-2016

submitted on 09-06-2008, that means even after submission of the

Court Commissioner's report, the matter was before the said Court

for passing final decree for about three months. Another fact to be

noted is that the present appellants No.1 and 3 were present when

the inspection was done by the Court Commissioner and it is

specifically stated in the report that the area which is in their

possession was inspected by seeking their permission. In spite of

this fact, it is then stated that they were not aware about the

proceedings.

8. Now as regards the acceptance of report of the Court

Commissioner is concerned, the learned Civil Judge, Senior Division,

has stated that there is no challenge to the said report and,

therefore, it is accepted. The learned First Appellate Court had then

re-looked at the report and the objections raised by the present

appellants. Apart from the observations regarding non-participation

of Ashok, it has also been observed that the suggestions suggested

by learned Court Commissioner need not to be interfered with. The

front portions are allotted to all the three sons and the mother which

is having the same facility. The married daughters are allotted piece

of land at the backside and other sharers have been put behind.

8 SA 596-2016, CA 11992-2016

Now as regards the access which has been now tried to be raised is

that there would be certain properties to which practically every

facility may not given at the time of partition. If we consider the

suggested map on behalf of the appellant, then it gives less area to

Ashok and Avinash whereas it gives more area to Shardabai and Anil

which is contrary to the suggestions given by Court Commissioner.

Court Commissioner in his report has given more area to Ashok and

Avinash and comparatively less to Shardabai and Anil as a common

road is kept by taking part from their share for giving access to the

married daughters. There is no objection by Shardabai and Anil to

the suggestion by the Court Commissioner, that means they are

ready to accept less. Further, the suggestion given by the present

appellants give less area to the married daughters as compared to

the area given by the Court Commissioner.

9. Merely because the suggested partition is not acceptable to

one of the sharer, it cannot lead to substantial question of law and,

therefore, the appeal requires to be dismissed, accordingly it is

dismissed. Pending civil application stands disposed of.

(SMT. VIBHA KANKANWADI) JUDGE vjg/-