Bombay High Court
Sunil Mahadev Kadam And Anr vs Sayajiraje Sadashiv Kadam, Thr. ... on 11 April, 2023
Bench: S. V. Kotwal
2023:BHC-AS:11056
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.7 OF 2023
Sunil Mahadev Kadam & Ors. .... Applicants
versus
Sayajiraje Sadashiv Kadam & Ors. .... Respondents
.......
• None for Applicant.
• Ms. Tanaya Goswami, AGP for Respondent No.20.
CORAM : SARANG V. KOTWAL, J.
DATE : 11th APRIL, 2023
P.C. :
1. This matter is placed for Speaking to the Minutes for
correction in the order dated 03/04/2023. In that order, the last
line reads thus;
'Consequently, the Writ Petition is dismissed.'
2. This, in fact, is Civil Revision Application. Therefore,
this typographical error be corrected and the last line be
corrected to read thus;
'Consequently, the Civil Revision Application is dismissed.'
Nesarikar
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3. Corrected order be uploaded.
(SARANG V. KOTWAL, J.)
CORRECTED ORDER DATED 03/04/2023 -:
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 7 OF 2023
Sunil Mahadev Kadam & Ors. ..Applicant
Versus
Sayajiraje Sadashiv Kadam & Ors. ..Respondents
__________
Mr. Rahul P. Walvekar for Applicant.
Mr. N. B. Patil, A.G.P. for Respondent Nos.20 and 20a to 20f.
__________
CORAM : SARANG V. KOTWAL, J.
DATE : 3 APRIL 2023
PC :
1. The Petitioners have challenged the order dated
21/06/2019 passed by Joint Civil Judge, S.D., Kolhapur, below
Exhibit-111 in R.C.S.No.671 of 2018. The Petitioners are the
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original Defendant Nos.6 to 8. The Respondent No.1 is the original
Plaintiff. For the sake of convenience, the parties are referred to by
their original status in the trial Court.
2. The Plaintiff had filed the suit against various
Respondents including the present Petitioners, basically for
partition of the suit property. That was his main prayer. The other
prayers were for declaration regarding revenue entries, for
preemption of right to purchase the property etc.
3. The Petitioners had filed Exhibit-111 under O.7, Rule
11(a) and 11(d) of the C.P.C. for rejection of the plaint, on the
ground that, there was no cause of action and the Plaintiff had no
authority to file the suit. Learned counsel for the Petitioners
submitted that the plaint was cleverly drafted to give it appearance
that it was filed within limitation. Learned counsel relied on the
Judgment of the Hon'ble Supreme Court in the case of K. Akbar Ali
Versus K. Umar Khan and Others1. On the other hand, the Plaintiff
had submitted before the Trial Court that the suit was for partition
of an ancestral property and it was within limitation.
1 2021 SCC OnLine SC 238
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4. I have considered these submissions and I have perused
the impugned order, as well as, the plaint. The learned Trial Judge
has rejected the Petitioners' application for rejection of the plaint
by observing that, it was necessary to go through the entire plaint.
The pleadings need to be constructed liberally and the approach
should not be adopted to defeat the justice on hair-splitting
technicalities. Learned trial Judge observed that, it was clear that
the Plaintiff had approached the Court with a case that the suit
property was ancestral property and had sought partition.
Therefore, if the entire plaint is taken into consideration, the basic
fact that the property remains a joint Hindu Family property unless
it was partitioned by metes and bounds. It was observed that the
right of partition was a continuous right and, therefore, it could
not be said that the plaint did not disclose the cause of action. It
was further observed that the suit for partition, injunction or
alienation and for right of preemption on the suit property and
recovery of sugarcane amount were maintainable in the Court. It
was not necessary that the Plaintiff must succeed in all the prayers
claimed. It was further observed that, plea of limitation raised by
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the Defendants was a mixed question of law and facts. Bases on
these observations, the application made by the Petitioners was
rejected.
5. As far as reference made by learned counsel for the
Petitioners in the case of K. Akbar Ali (supra) is concerned, it was
regarding drafting of the plaint. If it was seen to be devious and
clever then the Court had inherent power to see that frivolous and
vexatious litigation were not allowed to consume the time of the
Court. In the present case, the situation is completely different.
The Plaintiff is seeking partition of the suit property which he
claimed to be an ancestral property. There is no question of clever
drafting. The pleadings in the plaint are clear enough. Learned
Trial Judge has rightly observed that said prayer is maintainable.
Reading of the plaint also shows that the Plaintiff had specifically
pleaded in their plaint that, it was a joint family property and he
was seeking partition of the property. As far as, limitation point is
concerned, learned Judge has rightly observed that, a plea of
limitation was mixed question of law and facts. The plaint
nowhere discloses that partition was effected prior to filing of the
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suit. Therefore, the Plaintiff had every right to approach the Court
for partition of that property. Learned Judge is also right in
observing that the limitation was a mixed question of law and
facts. This can be decided during conduct of the suit. The main
prayer is partition of the suit property, for which the suit is
maintainable. Therefore, I do not see any infirmity in the order
passed by the Trial Court.
6. Consequently, the Civil Revision Application is dismissed.
(SARANG V. KOTWAL, J.)
