Janmohammad Babulal Pathan And ... vs Chagan @ Chaganmaharaj Gulabbhai ...
2021 Latest Caselaw 14173 Bom

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD


                      918 SECOND APPEAL NO.328 OF 2021
                                   WITH
                       CA/10808/2015 IN SA/328/2021

             JANMOHAMMAD BABULAL PATHAN AND OTHERS
                                 VERSUS
     CHAGAN @ CHAGANMAHARAJ GULABBHAI SHAIKH AND OTHERS
                                    ...
      Advocate for Appellants : Mr. Ruchir Wani h/f Mr. Bajaj Anil S.
     Advocate for Respondents No.1 to 3 : Mr. S. P. Salgar h/f Mr. N.V.
                                 Gaware
                                    ...

                                     CORAM :   SMT.VIBHA KANKANWADI, J.
                                     DATE :    30-09-2021.

ORDER :

1. Present second appeal has been filed by the original plaintiffs

challenging the Judgment and decree passed in Regular Civil Appeal

No.138 of 2010 by learned Principal District Judge, Ahmednagar on

15-01-2014.

2. Present appellants/original plaintiffs had filed Regular Civil Suit

No.01 of 2004 for partition, possession and injunction before learned

Civil Judge, Junior Division, Pathardi, District Ahmednagar. The said

suit was partly decreed. The defendants were perpetually restrained

from interfering and obstructing the peaceful possession of the

plaintiffs over the suit property Gut No.659/2 admeasuring 2 H 42 R

2 SA 328-2021

which was purchased as per sale deed dated 06-05-1978. It can be

seen from the Judgment of the Trial Court that the suit property was

in fact the Gut No.659 (Old Survey No.416, Old Gut No.1075). They

were claiming 3 Ane 3 Pai share from the suit field excluding 2 H 42

R. Issues No.3a and 3b before the Trial Court were to the extent

whether the plaintiffs have share and whether they are entitled to

get partition. The finding was given in the negative and accordingly

it appears that the relief of partition was rejected. Hence, the

plaintiffs preferred the said first appeal i.e. Regular Civil Appeal

No.138 of 2010 and it appears that the original defendants had not

challenged the decree in Regular Civil Suit No.1 of 2004. Therefore,

the scope of the first appeal was to the extent of the rejected part of

the decree of the Trial Court that is to the extent of partition and

separate possession.

3. The learned Advocate for the appellants has submitted that the

learned Principal District Judge, Ahemednagar wrote the entire

Judgment as it the appellants are the original defendants and then

dismissed the appeal thereby confirming the decree of the Trial

Court. He submitted that there was no application of mind and

proper adjudication. There is no compliance of Order 41 Rule 31 of

3 SA 328-2021

the Code of Civil Procedure and, therefore, they had even filed the

review petition before the same Court i.e. the Review Petition No.1

of 2014, however, it was rejected by the learned Principal District

Judge, Ahmednagar on 07-03-2015. He, therefore, submitted that

the substantial questions of law are arising in this case and also the

fact that is required to be considered is regarding whether to

remand the matter to the First Appellate Court for reconsideration of

the appeal on its own merits.

4. Learned Advocate for respondents strongly opposed the

application and submitted that review petition filed by the

appellants, before the same Court, has been rejected. The decree

passed by the learned Trial Court is correct wherein all the issues

were considered properly. The First Appellate Court has also

considered the facts and, therefore, there was no necessity for the

First Appellate Court to interfere with the Judgment and decree

passed by the Trial Court.

5. At the outset, it can be seen that the title of the Judgment of

the First Appellate Court shows that the appeal is filed by the

original plaintiffs. The appeal memo before the First Appellate Court

also clearly spells out that the appeal is to the extent of refusal of

4 SA 328-2021

the relief of partition. Under such circumstances, the points those

were framed by the learned First Appellate Court ought to have been

in consonance with the scope of the appeal, but it appears that the

First Appellate Court under mistake and belief, considered that the

appellants are the original defendants and then went on to decide

the appeal. There is absolutely no compliance of Order 41 Rule 31

of the code of Civil Procedure and also the decision in Santosh

Hazari vs. Purushottam Tiwari, reported in 2001 (3), SCC 179.

therefore, definitely substantial question of law is arising in this

case, however, since the matter requires then reconsideration by the

First Appellate court itself, it would be appropriate at this stage itself

to remand the matter to the First Appellate Court for deciding the

appeal on its own merits.

6. For the above said reasons, the second appeal stands partly

allowed.

7. The Judgment and decree passed by the learned Principal

District Judge, Ahmednagar in Regular civil Appeal No.138 of 2010

on 15-01-2014 is hereby set aside. The said Civil Appeal stands

restored on the file of learned Principal District Judge, Ahmednagar.

5 SA 328-2021

8. In view of the fact that the appeal of the year 2010 is now

restored, learned Principal District Judge, Ahmednagar to expedite

the matter and decide the appeal by the end of 31st March, 2022.

9. Both the parties to appear before the learned Principal District

Judge on 11-10-2021.

10. In view of above, second appeal stands disposed of. Pending

Civil application stands disposed of.

(SMT. VIBHA KANKANWADI) JUDGE

vjg/-