Shri. Dheeraj Mangalprasad ... vs State Of Maharashtra, State ...
2023 Latest Caselaw 2777 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH AT NAGPUR

                                  WRIT PETITION NO. 4529/2019

                                   Dheeraj Mangalprasad Jaiswal
                                                Vs.
                                  State of Maharashtra and others

Office Notes, Office Memoranda                          Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders

                                  Mr. S.G. Jagtap, Mr. Sayajee Jagtap, Mr. S.U. Bhuyar, Advocates for
                                  petitioner
                                  Ms. M.A. Barabde, AGP for Respondent / State
                                  Mr. G.C. Khond, Advocate for Respondent Nos.5 to 10
                                  Mr. C.B. Dharmadhikari, Advocate for Respondent No.11


                                  CORAM:        AVINASH G. GHAROTE, J.

DATED : 21st MARCH, 2023

Heard Mr. Jagtap, learned counsel for the petitioner, Ms. Barabde, AGP for respondent Nos. 1 to 4 / State, Mr. Khond, learned counsel for the respondent Nos.5 to 10 and Mr. Dharmadhikari, learned counsel for the respondent No.11.

2. The petition challenges the order dated 26/2/2019, passed by the respondent No.3 on the application filed by Shakuntala Shrikant Jaiswal and Dheeraj Mangalprasad Jaiswal dated 02/08/2018 and 28/12/2018 respectively seeking to include the names of all legal heirs of late Shivprasad Jaiswal for inclusion of their names in CL-III license. The application has been rejected on the ground that the

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dispute between the parties is still going on.

3. Mr. Jagtap, learned counsel for the petitioner submits, that according to family tree (page 4, para 3) of the petition, the two sons of Shivprasad Jaiswal, namely Shriram and Shrikant have 1/3rd right in his property and the daughter Nirmalabai has 1/3rd right. He further submits, that this being the position which stands concluded by dismissal of the SLP (Civil) No.3365/2018 (page 73) on 09/03/2018, the judgment of the trial Court in Spl. Civil Suit No.133/2005, dated 30/11/2007, would govern the position and therefore, the question of any dispute being in existence was clearly non-est and the respondent No.3 could not have rejected the application.

4. Mr. Dharmadhikari, learned counsel for respondent No.11, as also, Mr. Khond, learned counsel for the respondent Nos.5 to 10 do not dispute that the judgment and decree dated 30/11/2007 passed in Spl.C.S. No.133/2005 holding Shriram, Shrikant and Nirmalabai, the sons and daughter of Shivprasad Jaiswal each have 1/3rd share in the properties left behind by Shivprasad Jaiswal would govern the field. It is equally an undisputed position between them that after the demise of Shriram, Shrikant and Nirmalabai, their

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respective legal heirs would have right in the 1/3rd share of each of them. It is also not disputed that the original CL-III license stood in the name of Shivprasad Jaiswal. It is therefore, axiomatic that the declaration in Spl.C.S. No.133/2005 would equally govern the field and the legal heirs of Shriram, Shrikant and Nirmalabai would have 1/3rd share in the CL-III license. This position was recognized by this Court by its order 04/6/2018 on Civil Application No.683/2018 (page 157), while directing the respondent No.3 to decide the application for inclusion of the names in respect of CL-III license No.99.

5. Since the dispute about the entitlement of the properties of late Shivprasad Jaiswal stands resolved by the dismissal of the SLP (Civil) No.3365/2018 on 09/3/2018 (page 73), as a result of which, the judgment and decree passed in Spl. C.S. 133/2005 on 30/11/2007, has been rendered finality, the two sons of Shivprasad namely Shriram and Shrikant and daughter Nirmalabai each have 1/3rd share in the properties of Shivprasad Jaiswal and consequent to their demise, their legal heirs would jointly inherited their respective 1/3rd share. That being the position, the impugned order clearly suffers from non-application of mind to the position which is already settled between the parties, which

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only had to be noted and applied, in view of which, the impugned order dated 26/02/2019, is hereby quashed and set aside and the matter remitted to respondent No.3, to decide the applications filed by the petitioner and the respondent No.11 in the light of judgment and decree passed in Spl. Civil Suit No.133/2005, dated 30/11/2007 (page 54).

JUDGE

MP Deshpande