Bombay High Court
Nawnath Bapurao Waghode vs Wimalabai Bhagwan Kawale And Others on 12 March, 2025
2025:BHC-AUG:7614
1 sa484.95 judgment
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
22 SECOND APPEAL NO. 484 OF 1995
WITH
CIVIL APPLICATION NO. 7298 OF 1995
IN SA/484/1995
Nawnath s/o Bapurao Waghmode.
Age; 30 years Occ. Agriculture,
R/o; Ghatnandur, Tq. Boom,
District Osmanabad. ...APPELLANT
(Original Plaintiff)
VERSUS
01. Vimalabai W/o Bhagwan Kawale,
Age; 36 years, Occ. Agriculture,
R/o; Chandwad, Tq. Bhoom,
District Osmanabad.
02. Baburao S/o. Bhagwan Kawale,
Age; 12 years, Minor U/g. Of
Vimalbai W/o. Bhagwan Kawale,
R/o; Chandwad, Tq. Bhoom,
District Osmanabad.
03. Bhagwan S/o Sopan Kawale,
Age; 41 years, Occ; Agriculture,
R/o; Chandwad, Tq. Bhoom,
District Osmanabad.
04. Bankat S/o Sopan Kawale,
Age; 35 years, Occ. Agriculture,
R/o; Chandwad, Tq. Bhoom,
District Osmanabad. ...RESPONDENTS
(Original Defendant 1 to 3)
...
Advocate for Appellant : Smt. M.A. Kulkarni.
Advocate for Respondent Nos. 1 to 3 : Mr. U.R. Awate i/by Mr. S.B.
Talekar
Respondent No., 4 served.
...
CORAM : S. G. CHAPALGAONKAR, J.
Dated : 12.03.2025
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ORAL JUDGMENT :-
1. Heard Mrs. Kulkarni, learned Advocate appearing for the
appellant and Mr. U.R. Awate, learned Advocate for Respondent Nos. 1
to 3.
2. Present second Appeal has been admitted vide order dated
08.12.1995 by framing following substantial question of law :
"There involves substantial question of law when the
lower Appellate Court failed to raise points for
determination, resulting in miscarriage of justice in
appreciating the evidence."
3. Appellant/plaintiff contends that defendant No. 1 Bhagwan
s/o Sopan Kawale executed registered sale deed dated 10.09.1980 in his
favour in respect of suit property. On basis of sale deed, he acquired title.
Defendants are obstructing his possession over the suit property,
therefore, he sought decree of declaration of ownership and perpetual
injunction. In alternative, for possession of suit property.
4. Trial Court framed issues, recorded evidence of parties and
concluded that plaintiff proved that he has title of suit land under
registered sale deed dated 10.09.1980, but he is not in possession,
therefore passed decree directing defendant Nos. 1 to 3 to hand over
possession to the plaintiff.
5. Aggrieved defendant Nos. 2 & 3 filed Regular Civil Appeal No.
169 of 1986 before District Judge, Osmababad, who reversed decree,
eventually, dismissed suit vide judgment and order dated 19.06.1995.
6. Mrs. Kulkarni, learned Advocate appearing for appellant
submits that in fact defendants have obtained collusive decree dated
05.09.1980, thereafter sale deed came to be executed in favour of plaintiff.
Collusive decree between defendants would not bind his rights. She
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submits that without framing proper points for consideration under order
41 Rule 33 of Code of Civil Procedure the first appellate Court reversed
decree, therefore, urges for allowing Second Appeal.
7. Per Contra, Mr. Auti, learned Advocate appearing for
respondents/defendants supports impugned judgment and decree passed
by appellate Court. He points out that plaintiff has not claimed any relief
as against decree passed in RCS N O. 133 of 1980 by which defendant No.
1 had lost his right in respect of suit property, therefore, subsequent sale
deed dated 10.09.1980 would not confer any title on plaintiff.
8. Having considered submissions advanced, it can be observed
that RCS No. 133 of 1980 was decreed on 05.09.1980. Under this decree
partition between defendants was given effect and allotment of suit lands
to the share of defendant Nos. 2 and 3 was endorsed. As such they
acquired ownership and possession. As per compromise decree defendant
No. 1 had not retained any right qua suit property. On face of such
decree, sale deed dated 10.09.1980 has been executed by defendant No. 1
in favour of plaintiff. Apparently defendant No. 1 had no right to deal with
suit property as defendant Nos. 2 and 3 had acquired exclusive ownership
under decree passed by Competent Court of Civil jurisdiction. If plaintiff
had any grievance as regards to the decree in RCS No. 133 of 1980, he
could have claimed relief against such decree. But from reading of plaint,
it does not appear that plaintiff raised any such claim. It is possible that
defendant No. 1 has acted in collusion with other defendants while
entering into compromise and getting decree passed in RCS NO. 133 of
1980. However, subsequent sale deed executed by defendant No. l would
confer no title upon plaintiff. Appellate Court is therefore, justified in
dismissing suit by reversing decree of trial Court.
9. So far as, contention that appellate Court failed to frame
points for consideration in tune with Order 41 Rule 33 of the CPC, it can
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be observed that in absence of any prejudice on account of non framing of
points for consideration, decree as passed by appellate Court cannot be
disturbed.
10. Perusal of judgment of appellate Court shows that crucial
issue has been considered in light of evidence adduced by parties as per
facts and law as applicable. In present case entire evidence has been
marshaled while reaching to final conclusion. Therefore, even it is
presumed that requisite points for consideration were not framed, it
appears that contentions of parties and relevant points are dealt with in
detail. Therefore, no prejudice appears to have been caused to appellant.
11. In that view of the matter, Second Appeal sans merit. Hence
dismissed.
12. In view of disposal of Second Appeal pending Civil Application
has become infructuous and is disposed off.
( S. G. CHAPALGAONKAR )
JUDGE
mahajansb/
