Devidas Zagdu Koli vs Subhash Sravan Koli
2022 Latest Caselaw 5694 Bom

                                                Second Appeal No.158/2022 with
                                                    Second Appeal No.159/2022
                                      :: 1 ::


           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                  SECOND APPEAL NO.158 OF 2022 WITH
                  CIVIL APPLICATION NO.14278 OF 2019


 Devidas s/o Zagdu Koli                               ... APPELLANT
          VERSUS
 Subhash s/o Sravan Koli                              ... RESPONDENT
                                .......
 Mr. P.B. Patil, Advocate for appellant
 Mr. Girish Rane, Advocate for respondent
                                .......

                                      WITH
                      SECOND APPEAL NO.159 OF 2022

 Devidas s/o Zagdu Koli                               ... APPELLANT
          VERSUS
 Subhash s/o Sravan Koli                              ... RESPONDENT
                                .......
 Mr. P.B. Patil, Advocate for appellant
 Mr. Girish Rane, Advocate for respondent
                                .......

                                  CORAM :       R. G. AVACHAT, J.
                                  DATE   :      22nd JUNE, 2022.
 ORDER:

Both these Second Appeals are being disposed of

by this common order since parties thereto are same, and the

challenge is also to one and the same judgment and decree

dated 17/12/2016, passed in Regular Civil Suit No.129/2013

Second Appeal No.158/2022 with Second Appeal No.159/2022 :: 2 ::

and confirmed by the District Judge-1, Amalner in Regular

Civil Appeal Nos.3/2017 and 14/2018. The appellant in both

these appeals is the original defendant in the suit. The

respondent and his mother, deceased Laxmibai filed the suit,

Regular Civil Suit No.129/2013 for partition and separate

possession of agricultural lands and house property as well. A

sale deed dated 11/6/2003, executed by the father of the

respondent No.1 was also sought to be set aside on the

ground of the same having been got executed by practicing

fraud etc.

2. The trial Court, vide judgment and decree dated

17/12/2016, partly decreed the suit. Both the plaintiff and

defendant in the suit, therefore, preferred two separate

appeals. The respondent herein preferred appeal on the

ground of having been not granted relief of setting aside the

sale deed. While the appellant herein filed the appeal,

contending that, though he was served with the suit

summons, could not appear before the Court due to untimely

death of the original plaintiff Laxmibai.

3. The first appellate Court allowed the appeal

preferred by the original plaintiff and granted decree in toto

as was asked for in the suit. The appellate Court held the

Second Appeal No.158/2022 with Second Appeal No.159/2022 :: 3 ::

appeal preferred by the appellant herein to have not been

maintainable since remedy for him was to file an application

under Order IX Rule 13 of the Code of Civil Procedure. In

support of the reasons, the appellate Court relied on the

judgment of this Court in case of Shobha wd/o Suresh

Kurekar Vs. Mohan s/o Suresh Kurekar [2017(3) Mh.L.J. 334].

4. Heard. The learned counsel for the appellant

made submissions consistent with his stand before the

appellate Court and in the grounds of this Second Appeal.

The learned counsel for the respondent would, on the other

hand, submit that, the first appellate Court has rightly

observed the appeal to have not been maintainable. He

reiterated the reasons given by the first appellate Court for

dismissal of the appellant's appeal.

5. Considered the submissions advanced. Perused

the impugned judgment. It is a dispute pertaining to

agricultural lands and house property as well. A sale deed

executed by the plaintiff's father way back in 2003 was sought

to be set aside by filing a suit in October 2013. The grounds

for setting aside the said sale deed were based on fraud. The

plaintiff's father did not file such suit during his lifetime. True,

it is a matter of evidence to be considered. Suffice it to say

Second Appeal No.158/2022 with Second Appeal No.159/2022 :: 4 ::

that the first appellate Court allowed the appeal preferred by

the original plaintiff for the reason that the appellant herein

neither filed his written statement nor took exception to the

evidence let-in on behalf of the plaintiff. The appellate Court

also found that the limitation for setting aside the sale deed is

of 12 years in view of Article 109 of the Limitation Act. This

Court has reservations to concede to this reasoning.

Moreover, the appeals have not been argued on merits. This

Court is inclined to allow the same as the appellant herein did

not have an opportunity to meet the case of the respondent/

plaintiff.

6. After having gone through the judgment of the

first appellate Court, decreeing the suit in toto, this Court

finds it to be a fit case to remand the matter back to the first

appellate Court with a view to give the appellant herein an

opportunity of hearing.

7. For the reasons given hereinabove, both the

appeals are allowed in terms of the following order :-

ORDER

(i) Both the Second Appeals are allowed.

Second Appeal No.158/2022 with Second Appeal No.159/2022 :: 5 ::

(ii) The judgments and decree impugned in both the

appeals are set aside.

(iii) Regular Civil Appeal No.3/2017 is remitted back to

the first appellate Court, for deciding it on its own

merits within a time-frame of six months from the

date of receipt of copy of this order, after giving

opportunity of hearing to the parties thereto.

(iv) The appellant shall pay the respondent a sum of

Rs.25,000/- (Rupees twenty five thousand) as costs

immediately before the first appellate Court.

(v) The amount of cost deposited with this Court towards

allowing the application for condonation of delay be

remitted to the first appellate Court, for being paid to

the respondent.

( R. G. AVACHAT ) JUDGE

fmp/-