Bombay High Court
Vishranti Damodar Dattu And Anr vs Kranti Damodar Dattu And Ors on 31 January, 2023
Bench: Madhav J. Jamdar
33-SA-567-2022.doc
Arjun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.567 OF 2022
WITH
INTERIM APPLICATION NO.17094 OF 2022
IN
SECOND APPEAL NO.567 OF 2022
Vishranti Damodar Dattu & Anr. ...Appellants/
Applicants
V/s.
Kranti Damodar Dattu & Ors. ...Respondents
Mr. Machhindra A. Patil, for the Appellants/Applicants.
CORAM : MADHAV J. JAMDAR, J.
DATE : 31st JANUARY, 2023
P.C.:
1. Heard Mr. Machhindra A. Patil, learned counsel
appearing for the Appellants who are original Plaintiffs.
2. According to Mr. Patil following substantial question of
law is involved in the Second Appeal :
i) Whether the Appellate Court was right in
allowing para-4(A) added in the final order
without any issue framed by the Appellate Court
and therefore without issuing and without finding
para-4(A) added in final order and allotted the
33-SA-567-2022.doc
share of the Defendant No.4 and subsequent the
share to be allotted to the Defendant Nos. 7 and 8
was legal and proper?
3. The Appellants are the original Plaintiffs. The Plaintiffs
filed Regular Civil Suit No.50 of 10 seeking partition and
separate possession.
4. The learned Trial Court has decreed the suit and passed
following operative order :
"(1) The suit is partly decreed with costs.
(2) It is hereby declared that, the plaintiffs no. 1
and 2 and defendants no. 1 to 4 are entitled to
partition and separate possession of 1/6th share
each in the suit property i.e. Gat no. 2287/1
admeasuring 2 H. 5 R uncultivable 0 H. 03 R
situated at Mouje Mangalwedha, Tq.
Mangalwedha, Dist. Solapur and also the similar
share in the right over the suit well situated at
land bearing Gat no. 2288 and 2290 of Mouje
Mangalwedha, Tq. Mangalwedha, Dist. Solapur.
(3) On the application of plaintiffs or the
defendants no. 1 to 3 the decree for partition and
separate possession of the suit property (Gat no.
2287/1) be sent to District Collector, Solapur for
execution u/s. 54 r/w order XX rule 18 of the Code
of Civil Procedure, 1908.
(4) It is hereby declared that, the registered sale
33-SA-567-2022.doc
deed bearing no. 654/1999 dt. 29/04/1999
executed by defendant no. 4, the sale deed dt.
02/11/2002 executed by defendant no. 3 and
consequent mutation entries are void and not
binding on plaintiff's share in the suit property.
(5) The claim of mesne profits is rejected.
(6) Preliminary decree be drawn up accordingly."
5. Thus, it is clear that, in clause No. 4 of the Judgment
and Decree of the learned Trial Court, it has been declared
that, the registered sale deed dated 29th April, 1999 executed
by defendant no. 4 and consequent mutation entries are void
and not binding on plaintiff's share in the suit property.
6. The said Decree has been challenged by the original
Defendant Nos. 7 and 8 i.e. the purchasers. The learned
Appellate Court dismissed the Appeal and maintained the
Decree passed by the learned Trial Court in respect of
determination of the shares of the parties and confirmed
determination of the shares. However, added para no. 4(A) in
the final order. The said para no. 4(A) added in the Judgment
and Decree of the learned Trial Court reads as under :
"4(A). In the partition the share of the
defendant no.4 in the suit land be separated and
the possession of the same be handed over to the
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defendant nos. 7 and 8."
7. Admittedly, the registered sale deed dated 29th April,
1999 was executed by the Defendant No.4. The learned Trial
Court has come to the conclusion that, the said sale will not
bind the Plaintiff's share. The learned Appellate Court has
only modified the Decree, by which, share of the Defendant
No. 4 has been allotted to the Defendant Nos. 7 and 8.
8. Thus, it is clear that, the Decree as modified by the
learned first Appellate Court is not passed against the
Appellants who are original Plaintiffs as the share of the
parties are not at all affected by the Judgment and Decree of
the learned first Appellate Court. The learned Appellate
Court has just allotted share of the Defendant No.4 in favour
of the purchasers i.e. Defendant Nos. 7 and 8. By said
modification the present Appellants i.e. original Plaintiffs are
not at all affected.
9. Admittedly, the registered sale deed dated 29th April,
1999 was executed by the Defendant No.4 who has received
valuable consideration and, therefore, share allotted to the
Defendant No.4 has been allotted in favour of Defendant Nos.
7 and 8 who are the purchasers. Thus, the Appellants are not
33-SA-567-2022.doc
at all affected and therefore are not aggrieved by the
modification done by the learned First Appellate Court and,
therefore, there is no substance in this Second Appeal.
10. It is also significant to note that, the person who is
aggrieved i.e. Defendant No.4 who's share has been allotted
in favour of the Defendant Nos. 7 and 8 has not challenged
the modification made by the learned First Appellate Court.
11. For above reasons the Second Appeal is dismissed with
costs.
12. In view of dismissal of the Second Appeal, nothing
survives in the Interim Application and the same is also
disposed of.
(MADHAV J. JAMDAR, J.)
