Bombay High Court
Bapurao Sitaram Metkar And Others vs Sarjabai W/O Bapurao Ghawas And ... on 26 September, 2022
Bench: Avinash G. Gharote
(1) 4sa135.14
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
SECOND APPEAL NO. 135 OF 2014
Bapurao Sitaram Metkar and ors__ Vs. ___Sarjabai Bapurao Ghawas and ors
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. K.S.Narwade, Advocate for appellants.
Mr. G.M.Kubde, Advocate for respondents.
CORAM : AVINASH G. GHAROTE, J.
DATE : 26/09/2022
1] Heard Mr. Narwade, learned counsel for the
appellants and Mr. Kubde, learned counsel for
respondents.
2] While admitting the second appeal on
2.12.2016, the following substantial question of law was
framed.
Whether the decree for possession passed by
the lower Appellate Court against the dead
person can be sustained?
3] In the instant matter, RCS No. 08/1996 was
filed by the plaintiffs (respondents) for possession of the
land of Survey No.98/2, admeasuring 2.10 HR, Mouza
Balwadi. The learned trial Court by its judgment dated
7.9.2007 (page 69), dismissed the suit holding that the
defendants had become the owner of the suit property on
the basis of adverse possession. An appeal was filed there
against, by the original plaintiffs, who are the joint
(2) 4sa135.14
owners of the property, being RCA 32/2007. During the
pendnecy of the appeal, the Respondent No.5 - Prakash
Sitaram Metkar passed away on 25.4.2012; the
Respondent No. 9-b Bapurao Limbaji Metkar passed
away on 11.7.2012 and Respondent No. 9-d Anandrao
Limbaji Metkar passed away on 17.7.2012. The factum of
demise of these persons was not brought on record, as a
result of which the learned Appellate Court by the
judgment dated 31.12.2012 set aside the judgment of the
trial Court and decreed the suit for possession. (pg 43).
4] In so far as the substantial question of law
which was framed on 2.12.16 is concerned, Mr. Narwade,
learned counsel for the appellant submits that since the
decree by the learned first Appellate Court was passed
against the dead persons, the decree would be a nullity.
5] This position is not disputed by Mr. Kubde,
learned counsel for the respondents, he however
contends that the decree would be nullity only in respect
of the persons who are dead and whose L.Rs are not
brought on record. He contends that the decree would
survive in respect of the appellant who are already on
record. Reliance for which is placed on Gurnam Singh
vrs. Gurbachan Kaur AIR 2017 SC 2419.
6] Mr. Narwade, learned counsel for the
appellant to counter this, submits that the suit for
(3) 4sa135.14
possession was a joint suit by all the plaintiffs against the
original defendants, Sitaram Kondba Metkar/ Defendant
No.l, who has passed away during the pendecy of the suit
and Limba Kisan Metkar /Defendant No.2 and therefore,
there is a joint cause of action, which is indivisible,
considering which on account of the L.Rs of the deceased
respondent Nos. 5, 9b and 9d having not been brought
on record during the pendency of the appeal, the entire
decree passed by the learned Appellate Court would be a
nullity, for which reliance is placed upon Venigalla
Koteshwaramma vrs. Malampati Suryamba, (2021) 4
SCC 246 (Para 44.3).
7] Mr. Kubde, learned counsel for the
respondents seeks some time to verify this position,
considering which list the matter on 29.9.2022.
JUDGE
Rvjalit
Digitally sign byRAJESH
VASANTRAO JALIT
Location:
Signing Date:26.09.2022 18:41
