Bombay High Court
Abdul Rahim Shaikh Hasanji Bagwan ... vs Arundas Shivrao Kanegaonkar on 25 April, 2022
Bench: Mangesh S. Patil
41-SA-451-2018.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.451 OF 2018
WITH
CA/7729/2018 IN SA/451/2018
WITH
CA/14319/2018 IN SA/451/2018
WITH
CA/9361/2021 IN SA/451/2018
ARUNDAS SHIVRAO KANEGAONKAR
VERSUS
THE STATE OF MAHARASHTRA THRO. COLLECTOR, NANDED AND OTHERS
...
Mr. S.V. Adwant a/w Ms. N. B. Kamble, Advocates for Appellant
Mr. N. T. Bhagat, AGP for Respondent Nos.1 and 2 - State.
Mr. G. R. Syed, Advocate for Respondent Nos.3 and 5
...
CORAM : MANGESH S. PATIL, J.
DATED : 25 APRIL 2022
PER COURT :
1. Heard the learned advocate Mr. S. V. Adwant for the appellant,
learned AGP Mr. Bhagat for the respondents - State and learned advocate Mr.
G. R. Syed who appears for some of the respondents.
41-SA-451-2018.odt
2. This is a second appeal by the original defendant no.3,
questioning the judgment and findings recorded by the lower appellate court
in an appeal under section 96 of the Code of Civil Procedure preferred by the
original defendant nos.1 and 2 i.e. the State.
3. The respondents/plaintiffs had filed a suit for declaration of their
title to the suit property and for perpetual injunction for protection of their
possession. They had also sought a declaration that the order passed by the
defendant no.2, who is respondent no.2 herein, in a review proceeding, was
null and void.
4. The present appellant who was arrayed as defendant no.3
propounded a will and claimed to have derived title to the suit property
thereunder.
5. The trial court recording a negative finding regarding title and
possession being claimed by the plaintiffs, dismiss the suit. However, it
recorded a finding about the appellant/defendant no.3 having become owner
on the basis of the bequest.
6. Admittedly, the respondents/plaintiffs preferred an appeal under
section 96 of the Code of Civil Procedure being aggrieved and dissatisfied by
dismissal of their suit, but subsequently they abandoned it and it was
dismissed.
41-SA-451-2018.odt
7. The original defendant nos.1 and 2 i.e. the State preferred
another appeal challenging the findings recorded by the trial court about the
present appellant/defendant no.3 having the right and title to the suit
property on the basis of the will.
8. By the judgment and order under challenge in this second appeal
the lower appellate court has reversed the findings as recorded by the trial
court in favour of the appellant.
9. The second appeal is admitted on following substantial question
of law :-
(I) Whether the respondent nos.1 and 2 - State could have
preferred an appeal under section 96 of the Code of Civil
Procedure against only a finding recorded by the trial court
and whether the lower appellate court had jurisdiction to
decide it under section 96 of the Code of Civil Procedure?
10. In view of admission of the appeal, the execution and operation of
the judgment and order under challenge shall stand stayed till the decision of
the second appeal.
11. Hearing of the second appeal is expedited.
12. Civil application No.7729 of 2018 is disposed of.
13. Pending application for intervention to be decided with the
appeal.
41-SA-451-2018.odt
14. Call the Record and Proceedings.
15. Place the second appeal for final hearing on 5 May 2022.
16. Learned AGP Mr. Bhagat waives service on behalf of respondent
Nos.1 and 2 - State.
( MANGESH S. PATIL, J.)
Tandale/-
