Smt Bhagabai Sandu Janjal vs Anjanabai Netaji Dhumal
2023 Latest Caselaw 8769 Bom

                                        1                          SA-451-2023.odt




             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         BENCH AT AURANGABAD

                        SECOND APPEAL NO.451 OF 2023
                           WITH C.A. NO.10795/2023

                     SMT BHAGABAI SANDU JANJAL
                                  VERSUS
                      ANJANABAI NETAJI DHUMAL
                                     ...
              Advocate for Appellants : Mr. Nikam Prashant K.
                  Advocate for respondent : Mr. P. F. Patni
                                     ....

                                  CORAM : S. G. MEHARE, J.

                                  DATE      : 28.08.2023

PER COURT :

1. Heard the learned counsel for the applicant and the learned

counsel for the respondent.

2. Since the learned Appellate Court allowed the production of the

additional evidence under order 41 Rule 17 of the Code of Civil

Procedure and did not discuss the same, by consent the appeal is

heard finally at the admission stage.

3. The question goes to the root of the discussion of the documents

which were allowed to be produced by way of additional evidence by

the appellate Court. Admittedly, there is no whisper in the judgment of

the learned First Appellate Court about the documents which were

allowed to be placed in the appeal under order Rule 41 Rule 27 of the

2 SA-451-2023.odt

Code of Civil Procedure. The Court has to discuss oral as well as the

documentary evidence to arrive at proper conclusion. It was suit for

partition. The learned counsel for the applicant has submitted that the

compromise deed which was the base to find out the issue of partition

has not been considered properly by the learned First Appellate Court.

4. The learned counsel for the respondent has fairly conceded that

there is no whisper about the documents placed before the Appellate

Court under Order 41 Rule 27 of the Code of Civil Procedure,

therefore, question may fall for consideration here what shall be the

effect of not whispering the documentary evidence placed on record by

the appellant before the First Appellate Court.

5. In view of the apparent defect in impugned judgment and decree

passed by learned Extract Joint District Judge, Aurangabad, in Regular

Civil Appeal No. 202 of 2017 dated 10.01.2023. It is a partition suit.

The partition suit was opened in the year 2007. The parties appear

senior citizens. They have priority to get decide the appeal first. Since

there is apparent illegality committed by the learned Extra Joint

District Judge, Aurangabad, by consent the appeal is remitted to the

Extract Joint District Judge, Aurngabad or to the competent District

Judge Aurangabad to decide the appeal afresh considering documents

3 SA-451-2023.odt

filed on record by the appellant under Order 41 Rule 27 of the Code of

Civil Procedure by granting an opportunities to the respective counsel.

6. In above terms the appeal stands disposed of. In view of disposal

of Second Appeal, the Civil Application does not survive and same is

also disposed of.

7. No order as to costs.

8. The appeal shall be decided within four months from the receipt

of this order.

9. Both the parties to appear before the concerned District Judge,

Aurangabad on 11th September, 2023.

( S. G. MEHARE ) JUDGE

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