Zilaksingh Tikarambhau Bisen And ... vs Pramodkumar Prahaladrai Agrawal ...
2022 Latest Caselaw 7560 Bom

                                                            - S.A. 707.2004.odt




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   NAGPUR BENCH AT NAGPUR

                   SECOND APPEAL NO. 707 OF 2004

1) Zalaksing S/o Tikarambhau Bisen,
   A/a 52 years, Occ. Agriculturist
2) Dameshwar Singh Alias Palaksing
   s/o Tikarambhau Bisen, A/a 46 years,
   Occ. Agriculturist
3) Indrajitsingh s/o Tikarambhau Bisen,
   a/a 44 years occ. Agriculturist
4) Anandabai Wd/o Tikarambhau Bisen,
   a/a 70 years Occ household work
   All resident of Old Gondia, Civil Lines
   Gondia Tah and Dist. - Gondia (Old
   Bhandara)                                      .. Appellants
5) Smt Chandrarekha w/o Indraraj Turkar,
   a/a 54 years, Occ. household works,
   r/o Tigaon Tahsil Amgaon, Dist - Gondia

6) Smt. Hirabai Makhansingh Pawar,
   a/a 50 years, Occ. Household work,
   r/o Tingipar, Tahsil Baihar, Dist.BNalaghat

7) Smt Gangadevi Wd/o Namajibhau
   a/a 90 years Occ. Household work,
   r/o Old Gondia, Civil Lines Gondia
   Tah and Dist - Gondia (Old Bhandara)

                     Versus
1) Pramodkumar s/o Prahladrai Agrawal
   a/a 58 years, Occ. Business
   r/o Near Prabhat Talkies, Gondia
   Tah and Dist Gondia (Old Bhandara)
                                                 .. Respondents
2) Ashokkumar s/o Pralahadrai Agrawal,
   A/a 40 years, occ. Business
   r/o Near Prabhat Talkies Gondia
   Tah and Dist Gondia (Old Bhandara)




                                                               PAGE 1 OF 35
                                                            - S.A. 707.2004.odt




Mr. J. T. Gilda, Senior Advocate assisted by Mr. V.R. Borkar, Advocate
for appellants.
Mr. V. R. Mundra, Advocate for the respondents.



                        CORAM :         MANISH PITALE, J.
                 RESERVED ON      :     05/05/2022
            PRONOUNCED ON         :     03/08/2022



JUDGMENT

Heard Mr. J. T. Gilda, learned Senior Advocate for the

appellants and Mr. Mundra, learned counsel for the respondents.

(2) The original defendants are before this Court in

appeal, challenging concurrent judgments and decrees passed against

them and in favour of the respondents i.e. original plaintiffs. The

decree has been passed in favour of the respondents in a suit for

partition filed by them as purchasers of property from one of the

coparceners of the Hindu joint family of the appellants, as a

consequence of which the property sold to the respondents has been

put to the share of the alienating coparcener and allotted in their

favour. The appellants have been restrained from executing an earlier

PAGE 2 OF 35

- S.A. 707.2004.odt

decree passed in favour of some of the appellants and against the

respondents, whereby the said alienations had been set aside, as not

being for legal necessity. Various issues were raised on behalf of the

appellants while challenging the concurrent judgments and decrees.

The appeal was admitted on 25/11/2008, on a substantial question of

law and while finally hearing the appeal, this Court framed three more

substantial questions of law. The learned counsel for the rival parties

were heard at length on all the substantial questions of law. Before

stating the substantial questions of law, it would be appropriate to first

refer to the facts leading to filing of the present appeal.

(3) For the sake of convenience, the parties are being

referred to as per their status in the trial Court, hence the appellants

are referred to as defendants and the respondents as plaintiffs. The

defendants are Hindus governed by the Mitakshara Law administered

by the Banaras School. Tikaram was the father of defendant Nos.1 to

3, 5 and 6. The defendant No.4 was his wife and defendant No.7 was

his mother. Namaji and Gangabai (defendant No.7) were the father

and mother of the said Tikaram. Namaji died leaving behind extensive

landed property. At the time of death of Namaji, Tikaram was minor

PAGE 3 OF 35

- S.A. 707.2004.odt

and hence the property was managed by his mother

Gangabai(defendant No.7). When Tikaram became major, he appears

to have fallen in bad habits, turning into an alcoholic and a gambler.

Due to this Gangabai (defendant No.7) sought her share in the

ancestral property and there was an oral partition in the year 1948.

Tikaram started disposing of portions of ancestral property and hence

at the intervention of relatives, a formal partition of ancestral property

was affected by a registered partition deed dated 11/01/1957 between

Zalaksingh (defendant No.1) and his father i.e. Tikaram. Since the

said Zalaksingh was a minor, he was represented by his guardian

Gangabai (defendant No.7).

(4) Property in Khasra No.189 consisting of 8.02 acres,

which was part of ancestral property, was allegedly not included either

in the share of Tikaram or Zalaksingh, but it was kept joint with a view

to make provision for maintenance of dependent members of the

family. At the time when the registered partition deed dated

11/01/1957 was executed, Dameshwarsingh (defendant No.2) was in

the womb and he was born on 02/06/1957.

(5)                 On 27/01/1959, a registered Sale Deed was

                                                                  PAGE 4 OF 35
                                                                - S.A. 707.2004.odt

executed of 3.20 acres of land from Khasra No.189. The said Sale

Deed was executed by Tikaram in favour of the plaintiffs and since

they were minor, they were represented by their father. Similarly, on

11/02/1959, Tikaram executed Sale Deed for 4.82 acres of land from

Khasra No.189 in favour of the plaintiffs, who were represented by

their father. On 16/06/1959, Tikaram died. Thereafter, on

26/08/1959, Indrarajsingh (defendant No.3) was born.

(6) On 16/04/1963, defendant Nos.1 to 4, filed Regular

Civil Suit No.131 of 1963, before the Court of Civil Judge Junior

Division, Gondia challenging the aforesaid Sale Deed dated

27/01/1959 executed by Tikaram in favour of the plaintiffs concerning

3.20 acres of land from Khasra No.189. Another suit was filed to

challenge the Sale Deed dated 11/02/1959. The aforesaid suits were

filed by the said defendants on the ground that Tikaram had fallen into

bad habits and vices and that the said property was not sold for legal

necessity or for benefit of estate. The plaintiffs herein, who were

defendants in the said suit, resisted the prayers made in the suit and in

the year 1969, the suit was dismissed.

(7) Aggrieved by the same, the defendant Nos.1 to 4

PAGE 5 OF 35

- S.A. 707.2004.odt

filed Civil Appeal No.22 of 1969, before the District Court at Bhandara.

By judgment and order dated 10/03/1971, the appeal was allowed.

The judgment and order passed by the Court below was set aside and

a decree was passed declaring that said land from Khasra No.189 sold

by Tikaram, was not sold for benefit of estate and the same was not

binding on the plaintiffs therein. Accordingly, the defendants therein

i.e. plaintiffs in the present case were directed to deliver vacant

possession of the suit property. But, it was specifically recorded that

the plaintiffs herein were at liberty to start appropriate proceedings for

declaration that they had acquired the share of Tikaram, if there be

any, in the said field and claim allotment of the same to his share by

instituting appropriate proceeding for partition of the Hindu joint

family property.

(8) Aggrieved by the said judgment and decree, passed

by the appellate Court, the plaintiffs herein preferred Second Appeal

No.448 of 1972. On 26/09/1984, this Court dismissed the aforesaid

second appeal and confirmed the decree passed by the appellate Court.

It is an admitted position that the said judgment and decree attained

finality. Thereafter, on 18/04/1985, the plaintiffs filed Regular Civil

PAGE 6 OF 35

- S.A. 707.2004.odt

Suit No.120 of 1985, before the Court of Civil Judge Junior Division,

Gondia, for declaration, partition and permanent injunction. It is this

suit from which the present second appeal has arisen.

(9) The respondents in this appeal, being the original

plaintiffs, arrayed the appellants herein as the defendants and claimed

the aforesaid decree. The plaintiffs stated that the suit was being

instituted in terms of the liberty granted by the appellate Court in its

judgment and order dated 10/03/1971, in Civil Appeal No.22 of 1969.

It was claimed that since the said judgment and decree was the subject

matter of challenge before this Court and eventually the second appeal

was dismissed on 26/09/1984, the present suit having been filed on

18/04/1985 was within limitation. In this suit, the plaintiffs arrayed

not only the mother, widow and sons of the said Tikaram as

defendants, but they also joined daughters of Tikaram as defendants in

the said suit. In this suit, the plaintiffs referred to the two Sale Deeds

dated 27/01/1959 and 11/02/1959, whereby the said Tikaram had

sold 8.02 acres of land from Khasra No.189, in their favour. It was

claimed that as per the information available with the plaintiffs and

considering the revenue records, property admeasuring 101.71 acres in

PAGE 7 OF 35

- S.A. 707.2004.odt

different Khasra Numbers belonged to the Hindu undivided family of

Tikaram. In the plaint, the plaintiffs gave details of the Khasra

Numbers and the areas of the properties as per revenue records.

(10) It was further claimed that since there was enough

property that came to the share of their vendor i.e. Tikaram, the suit

be decreed by ascertaining the share of Tikaram and therefrom allot

the specific lands in Khasra No.189, that were sold in favour of the

plaintiffs. They also prayed for permanently restraining the

defendants from executing decree passed in their favour in the

aforesaid Regular Civil Suit No.131 of 1963.

(11) The defendants filed written statement claiming that

the reliefs sought by the plaintiffs could not be granted as there was no

joint family property with the defendants. It was claimed that the

property in Khasra No.189, in the earlier partition was not allotted to

Tikaram and it was to be utilized for maintenance of the dependent

members of the family. The defendants claimed that the judgment and

decree passed in the earlier suit i.e. R.C.S.No.131 of 1963, operated as

constructive res judicata, because the plaintiffs, being defendants in

the said earlier suit could have taken the pleas that were sought to be

PAGE 8 OF 35

- S.A. 707.2004.odt

raised in the aforesaid subsequent suit. It was denied that the family

of the defendants was owning and possessing about 115 acres of land

or the area of 101.71 acres specifically stated in the plaint. It was

claimed that partition could not be sought for the property, which had

been already partitioned and that the suit was barred by limitation.

(12) Upon issues being framed and the parties having led

evidence in support of their respective stands, the said Court finally

heard arguments in the aforesaid suit. On 22/04/1996, the Court of

2nd Joint Civil Judge Junior Division, Gondia, partly decreed the suit

against defendant Nos.2 to 6 and it was directed that partition be

made of the Hindu undivided family of deceased Tikaram. It was

further directed that the land in Khasra No.189, be put to the share of

the deceased Tikaram and it be allotted to the plaintiffs to satisfy their

claim of 8.02 acres. On this basis, the plaintiffs were declared as

owners of the said land in Khasra No.189 and the defendants were

restrained from executing decree in Regular Civil Suit No.131 of 1963.

(13) Aggrieved by the aforesaid judgment and decree,

the defendants filed Civil Appeal No.67 of 1996 before the District

Court at Gondia. By the impugned judgment and order dated

PAGE 9 OF 35

- S.A. 707.2004.odt

17/07/2004, the 2ndAdhoc Additional District Judge, Gondia,

dismissed the appeal and confirmed the decree passed in favour of the

plaintiffs. Aggrieved by the said judgment and order of the appellate

Court, the defendants filed the present appeal before this Court.

(14) On 25/11/2008, this Court admitted the appeal on

one substantial question of law. This appeal came up for final hearing

and at the stage of final hearing, on 05/05/2022, this Court framed

three more substantial questions of law and heard the learned counsel

for the rival parties extensively on all the four substantial questions of

law.

(15) The four substantial questions of law framed in the

present appeal are as follows: -

1) Whether the Courts below were factually correct in holding that Tikaram was sole owner of 34.71 acres of land even after two partitions or was he owner of 6.85 acres of land alone as is contended?

2) Whether the suit as filed in the present form is maintainable by a stranger without putting in hotchpotch the entire joint family properties?

3) Whether both the Courst below were right in holding that the suit is not barred by the principle

PAGE 10 OF 35

- S.A. 707.2004.odt

of constructive res judicata as per explanation (IV) to Section 11 of the C.P.C.?

4) Whether the suit filed by the respondents was within limitation?

(16) Mr. J. T. Gilda, learned Senior Counsel appearing

for the appellants i.e. original defendants submitted that the

substantial questions of law deserved to be answered in favour of the

appellants and that the concurrent judgments and orders passed by the

two Courts below deserved to be set aside. According to the learned

Senior Counsel, the concurrent judgments and orders passed in favour

of the respondents i.e. original plaintiffs were erroneous on various

grounds. It was submitted that as per the settled position of law, when

an alienee like the original plaintiffs herein files a suit for partition, the

entire property has to be included in such a suit and partition cannot

be sought for specific interest that the alienee claims to have acquired

from a coparcener, who alienated such interest in the ancestral

property. It was submitted that in the present case entire property was

not included in the suit and therefore, the frame of the suit itself was

defective. It was submitted that a partial partition could have been

carried out only by agreement of parties, but the general rule for

partition, in the suit as filed by the plaintiffs herein was that all the

PAGE 11 OF 35

- S.A. 707.2004.odt

joint family properties ought to have been included. As all the

properties were not included, the suit was defective and yet the Courts

below held in favour of the plaintiffs.

(17) It was further submitted that the present suit filed

by the plaintiffs was hit by constructive res judicata, as manifested in

explanation (IV) to Section 11 of the Code of Civil Procedure (CPC). It

was submitted that in the earlier suit i.e. Civil Suit No.131 of 1963,

filed by some of the defendants against the plaintiffs herein, which was

decreed and Sale Deed executed by the said Tikaram in favour of the

plaintiffs was set aside, the plaintiffs could have taken a defence or

they could have filed a counter claim and attacked the claims of the

defendants herein, on the grounds on which the subsequent suit was

filed. It was when the alienation itself was challenged that the

plaintiffs could have taken the stand that they took in the subsequent

suit and therefore, the subsequent suit was barred by the principle of

res judicata specified in Section 11(IV) of the C.P.C. For this

proposition the learned Senior Counsel relied upon judgment of the

Hon'ble Supreme Court in the case of Ramadhar Shrivas vs.

Bhagwandas (2005) 13 SCC 1.

PAGE 12 OF 35

- S.A. 707.2004.odt

(18) It was further submitted that the plaintiffs in a suit

for general partition, as in the present case, could not have claimed

allotment of a specific portion of the joint family property, because

there is distinction between a coparcener filing for partition and an

alienee like the plaintiffs herein filing for partition of joint family

property. This is because, a coparcener has a right to alienate his

undivided interests in coparcenery property, even without the consent

of the coparceners. Therefore, it was contended that in such a

situation when the plaintiffs filed the suit for partition, it could not be

equated with a suit for partition filed by coparceners.

(19) In this backdrop, it was also submitted that the

plaintiffs could not claim ascertainment of share of deceased Tikaram

and specific allotment of the properties sold to them, to the share of

deceased Tikaram. It was submitted that the plaintiffs were not

entitled to claim equity because they were in possession of the said

property from the year 1959, where they had constructed rice mills,

for the reason that such alienees like the plaintiffs under Hindu Law

are not entitled to claim equity as against the coparceners.

(20) According to the learned Senior Counsel for the

PAGE 13 OF 35

- S.A. 707.2004.odt

appellants, it was crucial that Tikaram had already died when the suit

for partition was filed by the plaintiffs and the death of Tikaram had

resulted in fluctuation and augmentation of the share of the other

coparceners in the property. Therefore, it was submitted that the

impugned judgments and orders were wrong in law.

(21) Reliance was placed on the judgment of the Nagpur

High Court in the case of Namdeo Govind and others vs. Mumtaj

Begum Khwaja Hakimuddin 1962 NLJ 308 and judgment of this Court

in the case of Patilbua Pandu Landoe vs. Sadashiv Vithoba Kamble and

others, 1976 Mh.L.J. 158.

(22) It was further submitted by the learned Senior

Counsel on behalf of the appellants that the suit was clearly barred by

limitation, for the reason that even if the liberty granted by the

appellate Court to the plaintiffs in the judgment and order dated

10/03/1971, while allowing Civil Appeal No.22 of 1969, was to be

considered, the liberty was granted on 10/03/1971 and admittedly the

suit was filed on 18/04/1985.

(23) It was submitted that the plaintiffs taking shelter of

PAGE 14 OF 35

- S.A. 707.2004.odt

Section 14 of the Limitation Act, was wholly misplaced, because the

said provision was not at all applicable to the facts of the present case.

Filing and pendency of Second Appeal No.448 of 1972, before this

Court could not be said to be a situation where the plaintiffs were

pursuing their remedy before a wrong forum, in order to seek benefit

under Section 14 of the Limitation Act. Therefore, it was submitted

that merely because second appeal was ultimately dismissed on

26/09/1984, it could not be said that the cause of action arose for the

plaintiffs to file the suit on 26/09/1984. On this basis it was submitted

that the suit ought to have been dismissed on the ground of limitation

itself.

(24) It was further submitted that the erroneous

approach adopted by the Courts below on the aforementioned grounds

led to the finding that there was sufficient property available to the

share of Tikaram, from which 8.02 acres of land could be carved out

and further by applying the principle of equity, the said land in Khasra

No.189, came to be wrongly allotted to the plaintiffs. On this basis, it

was submitted that the impugned judgments and orders deserved to be

set aside and the suit filed by the plaintiffs i.e. respondents herein

PAGE 15 OF 35

- S.A. 707.2004.odt

deserved to be dismissed.

(25) On the other hand, Mr. V. R. Mundra, learned

counsel appearing for the respondent i.e. original plaintiffs submitted

that the substantial questions of law need to be answered in favour of

the respondents and the present appeal ought to be dismissed.

(26) It was submitted that there was absolutely no

substance in the claim made on behalf of the appellants i.e. original

defendants, that entire joint Hindu family property was not made

subject matter of the suit filed by the plaintiffs. It was submitted that

the plaintiffs were not members of the family of the defendants. They

had purchased properties from Tikaram, who was a coparcener. In the

plaint, the plaintiffs had stated in extensive detail as to the extent of

properties of the family.

(27) Reliance was also placed and revenue records from

the year 1917 to place on record the joint family properties pertaining

to the Hindu undivided family of Tikaram. Even the daughters of

Tikaram who had not filed the earlier suit bearing Regular Civil Suit

No.131 of 1963, were made defendants in the suit. In other words,

PAGE 16 OF 35

- S.A. 707.2004.odt

the plaintiffs had taken sufficient care to add all members of the said

Hindu undivided family of Tikaram as defendants and to include all

the joint family properties to the best of their knowledge in the said

suit. It was submitted that in such suits filed by strangers or alienees,

it is often seen that even separate properties get included and it is only

after material is placed on record by the defendants i.e. members of

the joint Hindu family, that the extent of the property available for

partition becomes clear.

(28) It was emphasized that in the present case, the

defendants did not lead any evidence before the trial Court.

Therefore, they could not be permitted to turn around and claim that

the frame of the suit was defective, because all the joint family

properties were not included. Much emphasis was placed on the

presumptive value of revenue entries. In this regard, the learned

counsel placed reliance on judgment of the Hon'ble Supreme Court in

the case of Shri Pratap Singh vs. Shiv Ram (2020) 4 SCALE 280 , as

also judgment of this Court dated 06/09/2021 passed in Writ Petition

No.9653 of 2021 (Manik Ramrao Shelke vs. Balbhim Karbhari

Salunkhe and others).

PAGE 17 OF 35

- S.A. 707.2004.odt

(29) The learned counsel further submitted that the

plaintiffs had a right to file suit for partition under Section 44 of the

Transfer of Property Act and Section 127 of the uncodified Hindu Law.

There was no bar on the plaintiffs as alienees to file suit for partition,

so as to ascertain the share of their alienor i.e. Tikaram and to seek

allotment of specific properties from Khasra No.189, particularly when

they had continued in possession of the said property since the year

1959, which they had developed by constructing rice mills over a

period of time. It would be most inequitable and a travesty of justice, if

the plaintiffs were to be non-suited on the ground that although they

could claim partition for determination of share of Tikaram, they were

disentitled from seeking allotment of the specific plots that were sold

to them.

(30) On the question of res judicata, the learned counsel

submitted that Section 11(IV) of the CPC did not apply to the facts of

the present case, because no circumstances existed for invoking the

concept of res judicata. It was submitted that the earlier suit bearing

Regular Civil Suit No.131 of 1963, was filed by defendant Nos.1 to 4

and not by the other defendants against the plaintiffs herein. The said

PAGE 18 OF 35

- S.A. 707.2004.odt

suit was specifically for setting aside Sale Deed dated 27/01/1959,

executed by Tikaram, in favour of the plaintiffs. In the said suit, the

plaintiffs were defending the transaction that had taken place and they

were entitled to do so. The suit in the first place was dismissed by the

trial Court and thereafter, allowed by the first appellate Court. It was

submitted that this was the precise reason why, when allowing the

appeal and granting decree in the said matter, the first appellate Court

had clarified that liberty was reserved for the plaintiffs to initiate

appropriate proceeding for declaration that they had acquired the

share of deceased Tikaram in the suit field located in Khasra No.189

and to claim allotment of the same to his share by instituting an

appropriate proceeding for partition of the Hindu joint family property.

There was no question of applicability of the concept of constructive

res judicata, in the face of such liberty granted by this Court and in the

facts and circumstances of the present case.

(31) It was further submitted that the suit could not be

said to be barred by limitation, for the reason that the judgment and

decree passed by the first appellate Court on 10/03/1971, merged into

the judgment and decree dated 26/09/1984, passed by this Court

PAGE 19 OF 35

- S.A. 707.2004.odt

while dismissing Second Appeal No.448 of 1972. It was further

submitted that therefore, the suit being filed on 18/04/1985, was

clearly within limitation. The learned counsel submitted that reference

to Section 14 of the Limitation Act in the plaint was being sharply

criticized on behalf of the defendants i.e. the appellants herein, but it

is a matter of common knowledge that pleadings in Mofussil Courts

ought to be construed liberally and that reference to a wrong provision

of law ought not to inure to the benefit of the defendants.

(32) In this context it was submitted that Section 15 of

the Limitation Act could be applied, for the reason that during the

pendency of Second Appeal No.448 of 1972, before this Court, there

was an interim order and in any case the decree dated 10/03/1971,

passed by the first appellate Court could not have been acted upon.

Therefore, it was submitted that the suit could not be said to be barred

by limitation. On the basis of such contentions, the learned counsel

appearing for the plaintiffs submitted that the Courts below correctly

found that a large share to the extent of about 34.74 acres did come to

the share of Tikaram and that in the facts and circumstances of the

present case, 8.02 acres from Khasra No.189 could be allotted to the

PAGE 20 OF 35

- S.A. 707.2004.odt

share of Tikaram and then to the plaintiffs as the purchasers of the

said land from Tikaram. It was submitted that the Courts below had

taken a proper and reasonable view in the facts and circumstances of

the present case by applying the correct position of law and that the

substantial questions of law deserved to be answered in favour of the

plaintiffs i.e. respondents herein.

(33) In support of the aforesaid contentions, the learned

counsel for the original plaintiffs i.e. respondents herein relied upon

judgments of this Court in the case of Sakharchand Satidas vs.

Narayan AIR 1951 Bombay 10, Vasudeo Dagdulal and others vs.

Kankoochand Hirachand Visashrimali and others, AIR (88) 1951

Bombay 226, Gurulingappa Shivappa Masali vs. Sabu Ramappa Kore,

AIR 1931 Bombay 218, Ramkrishna Bajirao Gotmare vs. Kahaiyalal

Tribhuwanlal Shah, AIR 1990 Bombay 361, Laxminarayan Deo Vs.

Narayan Fula Marathe 1995 (1) BomCR 539 and judgments of Hon'ble

Supreme Court in the case of Gurupad Khandappa Magdum vs.

Hirabai Khandappa Magdum AIR 1978 SC 1239 and Union of India

vs. West Coast Paper Mills Ltd. 2004 (2) SCALE 285.

(34) Having heard the learned counsel for the parties on

PAGE 21 OF 35

- S.A. 707.2004.odt

the said substantial questions of law and upon perusal of the record,

this Court is of the opinion that the objections pertaining to res

judicata and limitation i.e. substantial questions of law Nos.3 and 4

can be considered first.

(35) It has been strenuously submitted on behalf of the

appellants that explanation (IV) to Section 11 of the C.P.C. pertaining

to the aspect of constructive res judicata applies and that therefore, the

subsequent suit, from which the present appeal arises, stood barred by

the concept of constructive res judicata. The said explanation (IV)

elaborates the concept of res judicata spelt out in Section 11 and

therefore, the issues in the earlier suit and the subsequent suit ought to

be directly and substantially the same, between the same parties or

between the parties under whom they claimed.

(36) In the facts of the present case, although the

respondents i.e. original plaintiffs sought relief in respect of lands

located in Khasra No.189, with which the earlier suit was also

concerned, the controversy raised in the earlier suit filed by four of the

appellants before this Court, was on a different issue.

                                                               PAGE 22 OF 35
                                                                  - S.A. 707.2004.odt




(37)               The    earlier   suit   was    an    attack       on        the

aforementioned Sale Deed about part of land in Khasra No.189, on the

ground that the said Tikaram, as 'Karta' of the joint family was not

justified in selling the said land to the respondents herein, as there was

neither legal necessity nor benefit of estate. The respondents herein as

defendants in the earlier suit were contesting the aforesaid challenge

raised on behalf of some of the appellants who were plaintiffs in the

said suit and they were defending the Sale Deed on the ground that it

was indeed executed for legal necessity or benefit of estate. The suit

was dismissed by the trial Court, but on appeal, it was decreed, which

attained finality. The remedy available to the respondents in such a

situation was to file the suit for general partition to ascertain the share

of their alienor i.e. Tikaram and therefore, they filed the subsequent

suit for partition, wherein they arrayed, not only those appellants who

were plaintiffs in the earlier suit, but also daughters of Tikaram and his

mother. The respondents placed on record details of the properties

belonging to the joint family by referring to revenue records from the

year 1917 onwards.

(38) The remedy of filing the subsequent suit for general

PAGE 23 OF 35

- S.A. 707.2004.odt

partition, in such circumstances is always recognized by law. It cannot

be said that such a remedy could or ought to have been availed by the

respondents in the earlier suit and that filing of the subsequent suit

was barred by the concept of constructive res judicata. The specific

transaction executed in favour of the respondents stood set aside in the

earlier suit, but the said proceeding could never shut out the

respondents as the alienees to seek partition of the joint family

property for allotment of land from the share of their alienor, as long

as they satisfied the requirements of such a suit for general partition.

(39) Thus, it cannot be said that the subsequent suit filed

by the respondents was barred by the concept of constructive res

judicata under Section 11(IV) of the C.P.C. The substantial question of

law is accordingly answered in favour of the respondents and against

the appellants.

(40) As regards the question of limitation, much

emphasis has been placed on behalf of the appellants on the fact that

liberty to file such a suit for partition was granted to the respondents

on 10/03/1971, while the suit was admittedly filed on 18/04/1985,

much beyond the period of limitation. It was submitted that the

PAGE 24 OF 35

- S.A. 707.2004.odt

respondents could not take shelter of Section 14 of the Limitation Act,

1963, for the reason that the same was wholly inapplicable, because

filing and pursuing appeal before this Court against the decree passed

by the District Court could not be said to be a proceeding being

pursued bonafide in a Court without jurisdiction. Much emphasis was

placed on the fact that in the plaint itself, it was specifically pleaded

that the respondents i.e. original plaintiffs were taking shelter of

Section 14 of the Limitation Act, to claim that the suit was filed within

the period of limitation.

(41) In this context, there is substance in the contention

raised on behalf of the respondents that merely because reference was

made to Section 14 of the Limitation Act in the plaint, it cannot be a

ground to non-suit them on the ground of limitation. It was submitted

that mere reference to a wrong provision ought not to be held against

the respondents, when filing and pendency of second appeal before

this Court and its ultimate disposal on 26/09/1984, was an admitted

position on facts. In this context, reference to Section 15 of the

Limitation Act on the part of the respondents appears to be

appropriate. The said provision pertains to exclusion of time in certain

PAGE 25 OF 35

- S.A. 707.2004.odt

cases where the institution of a suit has been stayed by an injunction

or order, the time period in such cases when the interim order operates

has to be excluded.

(42) In this context the learned counsel for the

respondents is justified in relying upon the judgement of this Court in

the case Laxminarayan Deo Vs. Narayan Fula Marathe (supra),

wherein it was held that pleadings in Mofussil Courts are loosely

drafted and as such liberal construction should be given to such

pleadings, thereby indicating that mere reference to section 14 of the

Limitation Act in the plaint ought not to be held against the

respondents. In the present case, there is no dispute about the fact that

the respondents filed Second Appeal No.448 of 1972, to challenge the

judgment and decree of the appellate Court dated 10/03/1971,

wherein liberty was granted to file suit for partition and that there was

an interim order operating during pendency of the appeal. It was

when the second appeal was dismissed on 26/09/1984, that the

respondents took steps to file the suit, in terms of the liberty granted

by the appellate Court, as confirmed by this Court.

(43) The respondents in this context, have referred to

PAGE 26 OF 35

- S.A. 707.2004.odt

judgment of this Court in the case of Ramkrishna Gotmare (supra),

wherein this Court has held that as per Section 15 of the Limitation

Act, limitation commences from the date of the appellate decree. It

has been laid down that when the appellate decree supersedes the

original decree on the basis of doctrine of merger, only the superseded

decree is enforceable and that therefore, limitation commences from

the date of the appellate decree. In this regard the Respondents are

also justified in relying upon judgement of the Supreme Court in the

case Union of India Vs. West Coast Paper Mills Ltd (supra). In the

present case, although liberty was reserved to the respondents to file

suit for partition despite the decree being granted in favour of some of

the appellants who had filed the earlier suit, the same was made

subject matter of challenge in Second Appeal No.448 of 1972 by the

respondents, which was ultimately dismissed on 26/09/1984. As per

the doctrine of merger, the decree of this Court became operational

and thereupon, the respondents filed the suit for partition on

18/04/1985. Therefore, it cannot be said that the suit filed by the

respondents was barred by limitation.

(44) The first and the second substantial questions of law

PAGE 27 OF 35

- S.A. 707.2004.odt

can be considered together for the reason that the extent of property

held by Tikaram, after two partitions in the year 1948 and 1957,

would also concern the question as to whether the suit filed by the

respondents could be said to be maintainable, as the appellants

specifically raised the objection that all the properties belonging to the

joint family were not made subject matter of the said suit. At this stage

it would be appropriate to note that as per the law laid down by the

Supreme Court in the case of Arshnoor Singh Vs. Harpal Kaur and Ors.

(2020) 14 SCC 436, after the two partitions in the years 1948 and

1957, the ancestral property in the hands of Tikaram would remain

coparcenary property for his descendants upto three degrees.

(45) A perusal of the plaint in the suit filed by the

respondents for partition would show that they arrayed as defendants,

not only the plaintiffs in the earlier suit i.e. the sons and widow of

Tikaram, but also the daughters and mother of the Tikaram. In the

plaint at paragraph 8, the respondents gave details of the properties

belonging to the joint family of Tikaram, stating the Gat Numbers, as

well as the area of such property totaling 101.71 acres of land. It was

stated that these details were obtained by the respondents from

PAGE 28 OF 35

- S.A. 707.2004.odt

revenue records and that therefore, the properties belonging to the

joint family were placed on record. Being strangers to the family, the

respondents had made efforts to identify the properties of the joint

family by referring to revenue records from the year 1917 onwards

and all the details as per their knowledge and information were placed

on record before the trial Court. In the written statement, the

appellants simply denied that the joint family had 101.71 acres of land

as described in the plaint and it was further claimed that the

respondents could not claim partition of property that was already

partitioned. But there were no specific pleadings on the part of the

appellants as regards the properties of the joint family.

(46) It is even more significant that the appellants did

not lead any evidence in support of their stand. In the absence of any

evidence led on their behalf, it could not lie in their mouth to state that

the suit was defective and not maintainable, because the entire joint

family properties were not made subject matter of the said suit. They

could also not make a bald denial by merely stating that the lands

stated in the plaint, totaling 101.71 acres, did not belong to the joint

family. In this context, the learned counsel for the respondents is

PAGE 29 OF 35

- S.A. 707.2004.odt

justified in contending that revenue records have presumptive value

and that it was for the appellants, as the defendants, to have led

evidence to rebut such presumption.

(47) Reliance placed in this context on the judgment of

the Supreme Court in the case of Shri Pratap Singh (supra) and that of

this Court in the case of Manik Ramrao Shelke (supra) is justified,

wherein it has been held that the presumption of truth attached to

revenue records can be rebutted only on the basis of evidence of

impeccable integrity and reliability. It has been further held that oral

evidence can be adduced to contradict the revenue record, but that in

itself will not be sufficient to hold that the statutory presumption is

rebutted. In the present case, as noted above, the appellants did not

lead any evidence and therefore, presumption as regards correctness of

the revenue record relied upon by the respondents went unrebutted

and the same ought to accrue to the benefit of the respondents. In this

backdrop, this Court is inclined to accept the contentions raised on

behalf of the respondents that the appellants cannot be permitted to

claim that the frame of the suit was defective, because all properties of

the joint family of Tikaram were not included.

PAGE 30 OF 35

- S.A. 707.2004.odt

(48) As regards the extent of property available to the

share of Tikaram is concerned, once the aforesaid position is accepted

as regards the extent of property available in the hands of the joint

family of Tikaram, the share ascertained on that basis by the trial

Court and confirmed by the appellate Court does not require any

interference. There is no perversity in the findings given in that regard

by the two Courts below and therefore, the same cannot give rise to a

substantial question of law warranting interference in the decrees

passed by the two Courts below.

(49) In this regard, it also cannot be said that since the

suit was filed by the respondents after the death of Tikaram, specific

share in the property could not be granted to the respondents as the

alienees, by invoking the principle of equity. In this context, the

learned counsel for the respondents has relied upon a judgment of

division bench of this Court in the case of Vasudeo Dagadulal (supra),

wherein it was held that a purchaser could certainly enforce his rights

by a suit for general partition and further, that a specific property from

the share of the alienor could be assigned to the alienees, provided it

could be done without injustice to other coparceners. It was held that

PAGE 31 OF 35

- S.A. 707.2004.odt

if there are equities between the coparceners or liabilities attaching to

the alienor's share, which would render it inequitable or impracticable

to allot specific property, the alienee would be entitled to recover an

equivalent value of property from the property of the alienor. Thus,

the concept of equity can be invoked, provided no injustice is done to

the other coparceners.

(50) In this context, the learned counsel appearing for

the respondents is also justified in relying upon the judgment of the

Hon'ble Supreme Court in the case of Gurupad Magdum (supra),

wherein it has been laid down that to ascertain the share of a deceased

coparcener, it is necessary to assume that partition had taken place

between the deceased and his coparceners immediately before his

death. Applying the said principle to the present case, it would be

clear that the Courts below ascertained the share of Tikaram and then

directed specific property to be allotted to the respondents as the

alienees.

(51) In this context, the learned counsel for the

appellants has placed much emphasis on judgment of the Nagpur High

Court in the case of Namdeo Govind (supra) wherein it is laid down

PAGE 32 OF 35

- S.A. 707.2004.odt

that when the coparcener is dead before the suit for general partition

is filed, the question of allotting any particular item of joint family

property to him cannot be considered and the alienee cannot ask for

adjustment of equities by claiming specific property. In this context, it

would be relevant to note that the said judgment of the Nagpur High

Court, at best, can be of persuasive value for this Court and it would

not be binding. The reason being that the successor High Court of the

Nagpur High Court is the High Court of Madhya Pradesh at Jabalpur

and not the Bombay High Court. This aspect has been clarified by

judgement of the Madhya Pradesh High Court in the case of Late Ishan

Vs. Jogesh 2013(2) MPLJ 460 . A full bench judgment of this Court in

the case of Prabodh K. Mehta Vs. Charuben K. Mehta 2018(2) MhLJ

898, has expressed reservation about the claim that judgments of the

Nagpur High Court can be said to be binding on this Court.

(52) In any case, as noted above, a division bench of this

Court in the case of Vasudeo Dagadulal (supra) has held that specific

property may be claimed by the alienees in such a situation, without

doing injustice to other coparceners. This Court is bound by the said

position of law as laid down by this Court and not persuaded to follow

PAGE 33 OF 35

- S.A. 707.2004.odt

the dictum laid down in the judgment of the Single Judge of Nagpur

High Court in the case of Namdeo Govind (supra).

(53) This Court finds that by granting decree in favour of

the respondents in respect of the specific property, in the facts of the

present case and the material available on record, it cannot be said

that any injustice has been done to the other coparceners. In fact,

when it is found that no injustice has been done to the other

coparceners, the concept of equity can certainly be invoked in favour

of the respondents, particularly for the reason that they have

continued in possession of the specific property since the year 1959

when the two Sale Deeds were executed and further that they

developed the property, constructing rice mills and other such

structures on the said land. Therefore, the contentions raised in this

regard on behalf of the appellants cannot be accepted.

(54) As regards reliance placed on behalf of the

appellants on the division bench judgment in the case of Patilbua

Landoe (supra), suffice it to say that in the said case it was held in the

backdrop of partial partition that since the other coparceners were not

consenting to such partial partition, a stranger filing a suit could not

PAGE 34 OF 35

- S.A. 707.2004.odt

claim relief. In the present case, the respondents filed the suit for

general partition on the basis of the liberty granted in the earlier suit

to determine the share of the alienor i.e. Tikaram and upon

determination of the extent of share of Tikaram, the trial Court in the

present case held in favour of the respondents. Therefore, the said

judgment of this Court also cannot assist the appellants to succeed in

the appeal.

(55) In view of the above, the substantial questions of

law are all answered against the appellants and in favour of the

respondents, thereby indicating that no interference is warranted in

the concurrent judgments and decrees passed by the two Courts below.

(56) Accordingly, the appeal is dismissed. Pending

application(s) stand disposed of. There shall be no order as to costs.

[ MANISH PITALE J.]

KOLHE

Digitally signed byRAVIKANT CHANDRAKANT KOLHE Signing Date:03.08.2022 14:41 PAGE 35 OF 35