Narayan Parasram Dhande And Anr vs Pundlik Parasram Dhande
2023 Latest Caselaw 12625 Bom

Bombay High Court

Narayan Parasram Dhande And Anr vs Pundlik Parasram Dhande on 12 December, 2023

Author: S. G. Mehare

Bench: S. G. Mehare

                                1                        15-SA-8-15.odt



      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  BENCH AT AURANGABAD


                 SECOND APPEAL NO. 8 OF 2015

           NARAYAN PARASRAM DHANDE AND ANOTHER
                            VERSUS
                  PUNDLIK PARASRAM DHANDE
                               ...
             Advocate for Appellants : Mr. R. R. Karpe
             Advocate for Respondent : Mr. R. V. Gore
                               ...
           WITH CIVIL APPLICATION NO.11309 OF 2011
                               ...

                                    CORAM :    S. G. MEHARE, J.

                                    DATE     : 12-12-2023

PER COURT :-

1. Heard the learned respective counsels for the parties.

2. The appellants are the original defendants. It was a suit for

partition and declaration of sale deed executed by the father in

favour of defendant No.1 in respect of Gat No.127 measuring 67 R.

null and void. The plaintiff had claimed partition of Gat Nos. 127,

128 and 129. The defendant had come up with a case that ten

years before, there was partition by metes and bounds. The

plaintiff got his share and separated from the joint property. The

objection was also raised that the mother and daughters were not

added as parties to the suit; hence, the suit is bad for non-joinder

of necessary parties. The learned trial Court held that the suit was

bad for the non-joinder of necessary parties and refused the 2 15-SA-8-15.odt

partition and separate possession. However, it had declared that

the sale deed executed by the father in favour of defendant No.1

with respect to Gat No.127 measuring 67 R. was null and void, and

the mutation entry was also not binding.

3. The defendant had preferred an appeal against the judgment

and decree of the Court of first instance. The First Appellate Court

held that the suit was not bad for non-joinder of necessary parties.

Gat No.128 was not the self-acquired property of defendant

No.2/father. The plaintiff did not receive land Gat No.127 in the

earlier partition. Defendant No.2 failed to prove that the suit

property was not transferred for legal necessity.

4. After hearing both learned counsels for the parties at length,

the Court is of the opinion that substantial questions of law have

been involved in this case. The following substantial questions of

law have been formulated:-

i) Was the suit bad for non-joinder of sisters/ daughters and mother/wife as parties to the suit?

ii) Was there a prior partition by metes and bounds?

iii) On whom does the burden lie to prove that the daughters were married before 22.06.1994?

iv) Do defendants prove that Gat No.128 was self-

acquired property of the father of defendant No.2?

5. Admit.

3 15-SA-8-15.odt

6. Issue notice to respondent.

7. Mr. More, learned counsel, waives service of notice for the

respondent.

8. Call R & P.

9. In civil application No.11309 of 2011 for stay, the order could

not be passed as the learned counsel for the respondent states

that the decree impugned has already been executed and

properties have been partitioned. Learned counsel for the

respondent seeks time to verify the facts. Time granted. The

application for the stay would be heard on the next date.

10. Stand over to 08.02.2024.

( S. G. MEHARE ) JUDGE

rrd