Bombay High Court
Sudhir Puroshottam Khodake vs Shashikumar Vishnu Khodake (Deceased ... on 17 January, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-AS:3327
Kishor 1/3 2 (12.1.24)IA.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL APPLICATION IN SA NO. 1323 OF 2019
WITH
SECOND APPEAL NO. 84 OF 2023
Sudhir Puroshottam Khodake ...Applicant
Versus
Shashikumar Vishnu Khodake
(decd. Thru Lrs.) ...Respondent
....
Mr. Ajay Joshi, a/w. Mr. Rahul Madan More for Appellant / Applicant.
Mr. Surel Shah, a/w. Mr. Sagar Redkar i/b. Mr. Deepak Salvi for Respondent
No.11
Mr. Sandesh Patil, a/w. Mr. Shashank Mangle for Respondent Nos.12 to 18.
....
CORAM : SANDEEP V. MARNE, J.
DATED : 12 JANUARY 2024.
P.C. :
The Interim Application is filed seeking stay of the impugned
Judgment and Order passed by the Trial Court and the First Appellate Court.
Plaintiff's claim before the Trial Court is premised only on the will dated 26
December 1956 executed by Vishnu Khodake. According to Plaintiff, the
will bequeaths entire landed property to Purushottam and therefore
Purushottam and his legal heirs (Plaintiffs) became sole and absolute owners
in respect of the landed properties. On the contrary it was the defence of the
Defendants that a partition was executed between the parties on 27 January
Kishor 2/3 2 (12.1.24)IA.doc
1962 on account of difficulty in interpreting will and the landed and house
properties were accordingly partitioned. That in said partition no share was
allotted in Purushottam in any of the landed properties. It is also case of the
Defendants that partition was acted upon by Purushottam by dealing with
and alienating some of the house properties allotted to his share in the
partition. The Defendant therefore contended before the Trial Court that
they have acted upon partition deed, it was not open for the Purushottam to
take volte face and claim exclusive ownership in the landed properties basis
Vishnu's will dated 26 December 1956.
2. The Second Appeal is admitted by formulating various
substantial questions of law. It appears that during pendency of the present
appeal, land bearing Survey No.157/2 came to be purchased by the tenant
(Respondent Nos.12 to 19) from Purushottam Khodke under provisions of
Section 64 of the Maharashtra Tenancy and Agricultural Lands Act. The land
so purchased by the tenant has further been transferred in favour of the
Respondent No.11-Developer. It appears that Plaintiffs did not amend suit to
set up challenge to the transaction executed in favour of tenants or in favour
of developer. Till today there is no challenge to the said transaction. It
appears that in adition to land bearing Survey No.157/2 there are several
other landed properties which still continue to be in ownership of the
Sundarbai's branch. In that view of the matter it would not be prudent to
impose any embargo on Respondent No.11 in dealing with land bearing
Survey No.157/2 during pendency of the present Appeal.
3. Further so far as other suit properties (excluding Survey
No.157/2) are concerned, it would be necessary for the members of the
Kishor 3/3 2 (12.1.24)IA.doc
Sundarabai's branch to maintain status quo in respect thereof during
pendency of the present Appeal. I accordingly proceed to pass following
order :
i) Respondent Nos.1 to 10 shall maintain status quo in
respect of suit properties except land bearing Survey No.157/2.
ii) It is clarified that no interim order is granted in respect of
land bearing Survey No.157/2.
4. With the above directions, Interim Application is disposed of.
SANDEEP V. MARNE, J.
KISHOR by KISHOR
VISHNU
VISHNU KAMBLE
KAMBLE Date:
2024.01.23
14:51:52 +0530
