Bombay High Court
Smt. Pramila Shriram Ajmire ... vs Vasantrao S/O Vitthalrao ... on 26 September, 2022
Bench: Avinash G. Gharote
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
SECOND APPEAL NO. 289 OF 2022
Smt. Pramila Shriram Ajmire (Dead)
Through her Legal Heirs
1. Sunil s/o Shriram Ajmire
Age 53 Years, Occ. Business
2. Anil s/o Shriram Ajmire
Age 51 Years, Occ. Business,
Nos. 1 & 2 R/o. Bilanpura, Achalpur,
Tq. Achalpur, District Amravati.
3. Sau. Rekha w/o Bajirao Bijwe
Age 63 Years, Occ. Household Work,
R/o. Macchisath, Near Sakkarsath,
Amravati, Tq. & District Amravati.
4. Sau. Sangeeta w/o Mohan Ajmire
Age 50 Years, Occ. Household Work,
5. Ku. Snehal d/o Mohan Ajmire
Age 23 Years, Occ. Education,
6. Chi. Kaivalya s/o Mohan Ajmire
Age 18 Years, Occ. Education,
Nos. 4 to 6 R/o. Bilanpura, Achalpur,
Tq. Achalpur, District Amravati. APPELLANTS
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Versus
1. Vasantrao s/o Vitthalrao Shirbhate
Age 85 Years, Occ. Retired,
Presently R/o. At Shirala,
Tq. & District Amravati.
2. Bhagwantrao s/o Vitthalrao Shirbhate
Age 87 Years, Occ. Agriculture,
R/o. Bilanpura, Achalpur,
Tq. & District Amravati. RESPONDENTS
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Mr. P.S. Raut, Advocate for the Appellants.
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CORAM : AVINASH G. GHAROTE, J.
DATED : 26th SEPTEMBER, 2022.
ORAL JUDGMENT :-
Heard Mr. Raut, learned counsel for the appellants.
2. The learned Trial Court, by the judgment and decree
dated 30.03.2017 (page 64), has decreed the suit for partition
and separate possession as filed by the respondents/original
plaintiffs. The learned Appellate Court, by the judgment dated
21.01.2022 (page 39), has dismissed the appeal.
3 31.SA.289-2022 JUDGMENT.odt
3. The only ground raised by Mr. Raut, learned counsel
for the appellants, is that in view of the earlier suit R.C.S.
No. 84/2001 filed by the plaintiffs/respondents and its dismissal
and so also the dismissal of the appeal R.C.A. No. 127/2007
challenging the aforesaid dismissal, the provisions of Order II
Rule 2 of the Code of Civil Procedure became attracted, and
therefore, the present suit for partition R.C.S. No. 243/2012,
was not maintainable. I am afraid, I am not able to acceede to
this argument for the reason, that R.C.S. No. 84/2001 by the
plaintiffs, was a suit claiming ownership over the suit property
on the basis that it was their self acquired property, and
therefore, the possession of the defendant Pramila was illegal
(legal heirs appellants herein), and was dismissed by the Trial
Court holding that the suit property was a joint family property
of the plaintiffs and defendant/s therein, which finding was
affirmed in appeal.
4. Thus, in light of what was claimed in R.C.S.
No. 84/2001 and the finding rendered therein, the subsequent
suit R.C.S. No. 243/2012, for partition and separate possession
would not be hit by the provisions of Order II Rule 2 of the Code
4 31.SA.289-2022 JUDGMENT.odt
of Civil Procedure, as the basic pleas raised in both the suits
were different. Rather R.C.S. No. 243/2012, was based upon
the finding rendered in R.C.S. No. 84/2001, to the effect that
the property was not the separate property of the plaintiffs
therein but was a joint family property. Even in R.C.S. No.
84/2001, the defence raised by Pramila, that the suit property
was given to her by her father and the plaintiffs therein were
given separate properties, has been turned down, considering
which, in R.C.S. No. 243/2012, all the findings rendered in
R.C.S. No. 84/2001, would operate as res judicata, and
therefore, in R.C.S. No. 243/2012, the Courts below were
correct in not taking into consideration the plea raised by
Pramila, that the suit property was given to her by her father, as
that issue already stood adjudicated in R.C.S. No. 84/2001 by
the Court by holding that Plot No. 79 was a joint property of the
plaintiffs and defendant/s, inspite of her defence to that effect
being on record. Thus, the finding which was rendered in R.C.S.
No. 84/2001 of Plot No. 79 being a joint family property of the
plaintiffs and Pramila the defendant, which finding stood
confirmed in R.C.A. No. 127/2007, is a finding which is
binding upon the parties to R.C.S. No.243/2012, considering
5 31.SA.289-2022 JUDGMENT.odt
which, I do not find any substantial question of law involved in
the present appeal.
5. The Second Appeal is dismissed. No costs.
6. Pending application/s, if any, shall stand disposed of
accordingly.
( AVINASH G. GHAROTE, J.)
S.D.Bhimte
Signed By:SHRIKANT
DAMODHAR BHIMTE
Signing Date:28.09.2022 14:18
