Bombay High Court
Abdul Matin Abdul Wahed Bagwan And ... vs Arundas Shivrao Kanegaonkar on 5 May, 2022
Bench: Mangesh S. Patil
941-SA-451-2018 with SA-50-2018.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 451 OF 2018
WITH
CIVIL APPLICATION NO. 14319 OF 2018
IN SA/451/2018
WITH
CIVIL APPLICATION NO. 9361 OF 2021
IN SA/451/2018
Arundas S/o Shivrao Kanegaonkar, ]
Age : 79 Years, Occu. : Pensioner, ]
R/o Anand Laxmi - 98, Gandhinagar, ]
Padampura, Fire Brigade, ]
Railway Station Road, Aurangabad. ] ... Appellant.
(Orig. Defendant No.3.)
Versus
01. The State of Maharashtra, ]
Through the Collector, Nanded. ]
02. The Tahsildar, Tahsil Office, ]
Nanded, Dist. Nanded ] (Orig.Deft. Nos.1 and 2)
03. Madhavrao S/o Abaji Patil, ]
Age : 59 Years, Occu. : Agril., ]
R/o Wajegaon, Tq. & Dist. Nanded. ]
04. Praveen S/o Omprakash Pokharna, ]
Age : 37 Years, Occu. : Agril., ]
R/o New Mondha, Nanded, ]
Tq. & Dist. Nanded. ]
05. Sk. Abid S/o Khajamiyan, ]
Age : 40 Years, Occu. : Agril., ]
R/o Peer Nagar, Nanded, ]
Tq. & Dist. Nanded. ]
06. Sk. Rashid S/o Mohd. Sab, ]
Age : 40 Years, Occu. : Agril., ]
R/o Labour Colony, Nanded, ]
Tq. & Dist. Nanded. ]
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941-SA-451-2018 with SA-50-2018.odt
07. Sk. Hyder Hussain S/o Sk. Pasha, ]
Age : 43 Years, Occu. : Agril., ]
R/o Itwara, Mafco Road, Nanded, ]
Tq. & Dist. Nanded. ]
08. Wasioddin S/o Rayajoddin Mujawar, ]
Age : 50 Years, Occu. : Agril., ]
R/o Peer Nagar, Nanded, ]
Tq. & Dist. Nanded. ] ... Respondents.
(Resp. Nos.3 to 8-Orig. Plaintiffs)
ALONG WITH
SECOND APPEAL NO.50 OF 2018
WITH
CIVIL APPLICATION NO. 813 OF 2018
IN SA/50/2018
01. Shaikh Abid S/o Khajamiya, ]
Age : 40 Years, Occu. Agriculture, ]
R/o Peer Nagar, Nanded, ]
Tq. & Dist. Nanded. ]
02. Shaikh Haidar Hussain S/o Shaikh Pasha, ]
Age : 50 Years, Occ. : Agri., ]
R/o Mafco Nanded, Tq. & Dist. Nanded. ] ... Appellants.
(Orig. Platfs. Nos.3 & 5)
Versus
01. The State of Maharashtra, ]
Through the Collector, Nanded. ]
02. Tahsildar, Tahsil Office, ]
Nanded. ]
03. Arundas S/o Shivrao Kanegaonkar, ]
Age - 73 Years, Occu - Pensioner, ]
Anant Laxmi - 98, Gandhinagar, ]
Padampura, Fire Brigade, ] Resp. Nos.1 to 3 are Orig.
Railway Station, Aurangabad. ] Deft. Nos.1 to 3
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941-SA-451-2018 with SA-50-2018.odt
04. Madhavrao S/o Abaji Patil, ]
Age : 53 Years, Occu - Agril. ]
R/o Wajegaon, Dist. Nanded. ]
05. Praveen S/o Omprakash Pokharna, ]
Age : 31 years, Occu - Agril., ]
R/o New Mondha, Nanded ]
06. Sk. Rashid S/o Mohd. Sab, ]
Age : 34 Years, Occu - Agril., ]
R/o Labour Colony, Nanded. ]
07. Wasioddin S/o Rayajoddin Mujatwar, ] Resp. Nos.4 to 7 are Orig.
Age : 44 Years, Occu - Agril., ] Plaintiff Nos.1, 2, 4 & 6.
R/o Peernagar, Nanded. ] ... Respondents.
...
Mr. S. V. Adwant a/w Ms. N. B. Kamble, Advocate for Appellant in SA/451/2018 and
for Respondent No.3 in SA/50/2018.
Mr. N. T. Bhagat, A.G.P. for Respondent Nos.1 and 2 - State
Mr. G. R. Syed, Advocate for Appellants in SA/50/2018 and for Respondent Nos.3 to
8 in SA/451/2018.
...
CORAM : MANGESH S. PATIL, J.
DATED : 05 MAY 2022
ORDER :
1. Heard the learned advocate Mr. Adwant for the appellant in
Second Appeal No. 451 of 2018, learned A.G.P. Mr. Bhagat, who appears for
respondent nos.1 and 2 - State and also the learned advocate Mr. Syed, who
appears for the respondent Nos.3 to 8 in that appeal.
941-SA-451-2018 with SA-50-2018.odt
2. Respondent Nos.3 to 8 had filed a suit arraying the respondent
Nos.1 and 2 - State as defendant nos. 1 and 2 and the appellant as defendant
no.3 seeking declaration of their title to the suit property and for perpetual
injunction.
3. It appears that the appellant contested the suit by propounding a
will of his natural mother Laxmibai and claimed to have received the suit
property in bequest. The trial court inter alia framed Issue No.2-A regarding
the will being propounded by the appellant and answered it in the affirmative,
albeit by holding that the respondent nos.3 to 8 had failed to prove their title
and possession over the suit property, it dismissed the suit.
4. Respondent Nos.1 and 2 - State preferred an appeal under section
96 of the Code of Civil Procedure (for short, "CPC") only against the finding
recorded by the trial court against issue No.2-A pertaining to the will being
propounded by the appellant. By the judgment and order under challenge in
the second appeal, the lower appellate court has allowed the appeal and has
reversed the finding of the trial court in respect of issue No.2-A.
5. Second appeal was admitted on following substantial question of
law :-
"(I) Whether the respondent nos.1 and 2 - State could have
941-SA-451-2018 with SA-50-2018.odt
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?"
6. Learned advocate for the appellant Mr. Adwant relies upon
following decisions :-
1) Smt. Ganga Bai V/s. Vijay Kumar & Ors.; (1974) 2 SCC 393,
2) Konda Lakshaman Babu Ji. V/s. The State of A.P. & Ors.;
AIR 1977 AP 427,
3) Banarsi & Ors. V/s. Ram Phal; (2003) 9 SCC 606, and few others.
He strenuously submits that the respondent Nos.1 and 2 - State
had no right to prefer any appeal under section 96 of the CPC only against a
finding to the issue No.2-A and the lower appellate court had no jurisdiction to
sit in appeal in exercise of the powers under that provision. He would
therefore submit that for this reason alone, apart from the merits, the second
appeal deserves to be allowed and the impugned judgment and order is liable
to be quashed and set aside.
7. Learned AGP supports the judgment and order and submits that
the lower appellate court in paragraph no. 65 onwards has elaborately dealt
with and has recorded an objective finding to demonstrate that the appellant
was not able to establish the bequest.
941-SA-451-2018 with SA-50-2018.odt
8. Learned advocate Mr. Adwant would further submit that though
the original plaintiffs i.e. respondent nos.3 to 8 had not preferred any appeal
under section 96 of the CPC against the judgment and order of the trial court
dismissing their suit, they are not entitled to prefer any appeal under section
100 of the CPC directly without there being any appeal under section 96 of the
CPC. He would therefore submit that second appeal No.50 of 2018 preferred
by original plaintiffs is not maintainable.
9. Learned advocate Mr. Syed who appears for the respondent Nos.3
to 8 - original plaintiffs, on instructions seeks leave to withdraw the second
appeal No.50 of 2018 unconditionally.
10. The substantial question of law as formulated herein-above, in
fact is no more res integra. In catena of judgments including the ones cited by
the learned advocate Mr. Adwant, make it abundantly clear that no appeal
under section 96 of the CPC would be maintainable against only a finding to
an issue. Only a decree is susceptible to a challenge under the provision.
There could be some orders against which a right to prefer an appeal is
provided by a statute like section 104 read with Order XLIII of the CPC.
941-SA-451-2018 with SA-50-2018.odt
11. Admittedly, respondent Nos.1 and 2 who represent the State were
the defendant Nos.1 and 2 and the appellant was the defendant No.3 against
whom the respondents/original plaintiffs had sought a declaration of their title
to the suit property and perpetual injunction. The suit was dismissed. As a
result, no decree was passed against the respondent Nos.1 and 2 - State which
could have made them entitled to prefer an appeal under section 96 of the
CPC. It is quite evident that they were merely aggrieved by the finding
recorded against issue no.2-A holding the appellant to have become owner on
the basis of the bequest.
12. The merits of the reasoning given by the trial court as also by the
lower appellate court on this issue apart, the finding to that issue had no direct
bearing on the title being sought to be established by the original
plaintiffs/defendant no.3 to 8. Even if he would have failed to prove his
ownership and possession over the suit property, the findings to the issue
Nos.1 and 2 would have been sufficient to dismiss the suit. In spite of such
state of affairs, for the reasons best known to the persons at the helm of the
affairs, a decision was taken to challenge the finding to issue No.2-A and
accordingly respondent Nos.1 and 2 - State preferred the appeal under
Section 96 of the CPC in which the impugned judgment and order has been
passed.
941-SA-451-2018 with SA-50-2018.odt
13. As is observed herein-above, no right to prefer any appeal under
section 96 of the CPC is available to a party only against the finding, when the
substantive litigation has terminated in its favour. Though the issue regarding
maintainability of the appeal does not seem to have been raked up before the
lower appellate court; it was imperative for it to have borne in mind the
limitations on its powers to be exercised under section 96 of the CPC.
14. For this reason, when the respondent Nos.1 and 2 State were not
entitled to prefer any appeal under section 96 of the CPC and the lower
appellate court had no jurisdiction to sit in appeal in exercise of the powers
thereunder, I answer this substantial question in favour of the appellant.
15. Second appeal no. 451 of 2018 is allowed.
16. The impugned judgment and order of the lower appellate court is
quashed and set aside.
17. Second appeal no. 50 of 2018 is dismissed as withdrawn.
18. All pending applications are disposed of.
( MANGESH S. PATIL, J.)
Tandale/-
