Bombay High Court

Atmaram Daulatrao Pole And Ors vs Shankarrao Narayan Kanakdande Died Lrs ... on 2 May, 2025

2025:BHC-AUG:12942
                                                                     sa-224-2017.odt
                                                    (1)


                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    BENCH AT AURANGABAD

                                  SECOND APPEAL NO.224 OF 2017

                 1.    Atmaram s/o Daultrao Pole
                       Age: 68 years, Occu. Agri.

                 2.    Vithal s/o Atmaram Pole
                       Age:37 years, Occu. Agri.

                 3.    Madhav s/o Atmaram Pole.
                       Age:28 years, Occu. Agri.

                 4.    Shivaji s/o Atmaram Pole
                       Age: 25 years, Occu. Agri.

                       All R/o: Ramtirth, Tq, Loha,
                       Dist. Nanded.                             ..Appellants

                       VERSUS

                 1]    Shankarrao Narayan Kanakdande
                       (dead) Through L.Rs.

                 1A)   Prakash Shankarrao Kanakadane
                       Died through his L.R's

                 a).   Suniti w/o Prakash Kanakdande
                       Age 68 years, occu. Household
                       r/o 2-Kalyan Chaitanya Nagar
                       Visheshwaryya Housing Society
                       Taroda Bk. Nanded

                 b).   Mrs. Pragati Nagesh Potdar
                       Age 35 years, occu. Household
                       r/o In front of Balaji Temple
                       Bhatgalli, Degloor, Tq. Degloor
                       District: Nanded

                 c).   Mrs. Pranali Sandip Bhende
                       Age 30 years, occu. Service
                       r/o Plot No.104 "Lakshimi Venkatesh"
                       Dattatraya Nagar, Near Salveshwar
                       Temple Nagpur 440024.
                                                            sa-224-2017.odt
                                 (2)


d).   Miss. Prachatiti w/o Prakash Kanakdande
      Age 28 years, occu. Household
      r/o 2-Kalyan Chaitanya Nagar
      Visheshwaryya Housing Society
      Taroda Bk. Nanded

e).   Miss. Amruta w/o Prakash Kanakdande
      Age 28 years, occu. Household
      r/o 2-Kalyan Chaitanya Nagar
      Visheshwaryya Housing Society
      Taroda Bk. Nanded

1-B] Vijay s/o Shankarrao Kanakdande
     Age: 68 years, occu. agri.

1-C] Arun s/o Shankarrao Kanakdande
     (Dead) through L.Rs.

1-C-I] Swati w/o Arun Kanakdande
       Age: 48 years, Occu. Agri.

1-C-II] Shantanu s/o Arun Kanakdande
       Age: 21 years, Occu. Education.

1-C-III]Kaustub s/o Arunrao Kanakdande
       Age: 17 years, Occu. Education.
       Minor u/g real mother
       Swati Arun Kanakdande.
       r/o: A/p. Ganesh Nagar,
       Tq. Udgir, Dist. Latur.

1-D] Kapil s/o Shakarrao Kanakdande
     Age: 53 years, Occu. Agri.

1-E] Shobha Shankarrao Kanakdande
     Age: 61 years, Occu. Household.

1-F] Nirmala Shankarrao Kanakdande
     Age: 55 years, Occu. Household.

      1-D, 1-E, 1-F are R/O: Shramsaphlya Nagar,
      Ahmedpur, Tq. Ahmedpur,
      Dist: Latur.                                      ..Respondents
                                  ...
Mr. B.R. Kedar h/f Mr. B.S. Kudale, Advocate for Appellants :
                                                             sa-224-2017.odt
                                  (3)


Mr. M.D. Narwadkar, Advocate for Respondent Nos.1A/a to 1A/e,
1C/I to 1C-III, 1-D to 1-F.
                               ...
                            CORAM : S.G. CHAPALGAONKAR, J.

                       RESERVED ON : MARCH 06, 2025
                     PRONOUNCED ON : MAY 02, 2025

JUDGMENT :

1. The appellants (original objection petitioners) impugns

judgment and decree dated 16.06.2016 passed by learned District

Judge-1, Kandhar in Regular Civil Appeal No.11 of 2014 thereby

upholding order dated 07.02.2014 passed by learned Civil Judge,

Junior Division, Loha below Exhibit-32 in Regular Darkhast No.20 of

2002 by which the application/objection filed the appellants under

order XXI Rule 97 of the Civil Procedure Code to execution of decree

has been rejected.

2. Brief facts giving rise to the present second appeal can be

stated as under.

3. The portion of 46R land from Block No.387 situated at

Village Ramtirth, Taluka Loha, District Nanded is subject matter of

litigation. One Shankarrao Narayan Kanakdande instituted Regular

Civil Suit No.246 of 1974 before learned Civil Judge, Junior Division,

Gangakhed seeking decree for partition and separate possession

against Madhukar @ Yashwantrao Kanakdande and others. Amongst

other properties, land Block No.387 was also included as suit

property. It was claimed that suit properties are ancestral properties, sa-224-2017.odt

therefore, plaintiff is entitled for partition and separate possession of

his share. Upon adjudication, Regular Civil Suit No.246 of 1974 was

decreed vide judgment and order dated 15.01.1980. However, the

property Block No.387 was excluded from decree on finding that

Madhukar @ Yashwantrao Kanakdande is the exclusive owner of the

property or it is his self-acquired property. Immediately after 10 days

of the aforesaid decree, Madhukar @ Yashwant Kanakdande executed

sale deed dated 25.01.1980 in favour of Balwant and Mahalsakant.

In turn, vide sale deed dated 09.04.1987, it was purchased by

Sadashiv Pole. Lastly, appellant no.1 and Sadashiv transferred land to

Uttam Devla Rathod. Thereafter, appellant no.1 again purchased 80R

land from Uttam Rathod. Appellant no.1 then transferred land in the

name of his three sons i.e. appellant nos.2 to 4.

4. Meanwhile, Shankarrao Kanakdande filed Regular Civil

Appeal No.25 of 1980 against judgment and decree dated 15.01.1980

passed in Regular Civil Suit No.246 of 1974. The said appeal came to

be allowed holding that suit properties including Block No.387 are

ancestral properties and plaintiff along with other coparceners is

entitled for partition and separate possession. The decree as passed

by the Appellate Court has been put to execution in Regular Darkhast

No.20 of 2002 by legal heirs of original plaintiff i.e. Shankarrao

Kanakdande. The appellants, who acquired possession in pursuance

to aforesaid sale deed filed objection petition below Exhibit-32 under sa-224-2017.odt

Order XXI Rule 97 of Civil Procedure Code. They resisted decree on

the ground that the decree is passed behind their back. They were not

aware about filing of appeal. Even they were not added as party

before the Appellate Court in Regular Civil Appeal No.25 of 1980.

According to them, the Trial Court had rendered specific finding in

Regular Civil Suit No.246 of 1974 that property Block No.387 is self-

acquired property of Madhukar @ Yashwantrao Kanakdande.

However in appeal, said Madhukar conceded to treat Block No.387 as

ancestral property. As such, decree passed in appeal is collusive and

would not be executable against them.

5. The Trial Court after considering rival submissions

rejected objection vide order dated 07.02.2014, mainly on the ground

that the appellants being pendente lite purchasers not entitled to

invoke the provisions of Order XXI Rule 97, 98 or 101 of Civil

Procedure Code. Further Section 52 of Transfer of Property Act

would operate against them. Aggrieved objection petitioners/present

appellants filed Regular Civil Appeal No.11 of 2014 before District

Judge-1, Kandhar, which came to be rejected vide impugned

judgment and order dated 16.06.2016. The present second appeal is

filed assailing aforesaid order.

6. The present second appeal was posted for admission on

21.01.2019 and after hearing parties, this Court framed the following

substantial questions of law and admitted the appeal :

sa-224-2017.odt

(I) Whether in absence of framing necessary issues and point for consideration by the learned Civil Judge and learned District Judge, trial is vitiated and whether the judgment of both the courts is sustainable?

(III) Whether the courts below have considered that the judgment and decree in Regular Civil Appeal No. 25 of 1980 of the learned District Judge is behind and back of present appellants and with collusion by the respondents in order to defeat the right of the present appellants?

(V) Whether the courts below have considered that the present appellants are bona fide purchaser for value without notice and that they had no knowledge about the filing of Regular Civil Appeal No. 25 of 1980 by the respondents till filing of the execution proceeding?

(VI) Whether both the courts below have considered that alternatively the sale deed executed in favour of appellants is binding in respect of the share of the concerned respondent Yashwantrao Kanakdande?

7. On 29.03.2022, considering the request of parties, the

second appeal was directed to be placed for final hearing. Again vide

orders dated 25.04.2024, 24.01.2025 and 04.03.2025, the appeal was

directed to be placed on the board for final hearing, as litigation is

initiated in the year 1974 and decree under execution is passed in the

year 1999, which is awaiting its execution. Accordingly, learned

advocates appearing for respective parties advanced their

submissions.

sa-224-2017.odt

8. Mr. B.R. Kedar, learned advocate appearing for the

appellants would submit that Regular Civil Suit No.246 of 1974 was

decreed vide judgment and order dated 15.01.1980. However, Block

No.387, which is subject matter of present litigation was held to be

self-acquired property of Madhukar @ Yashwantrao Kanakdande, who

transferred the same under registered sale deed dated 25.01.1980.

By inviting attention of this Court to the judgment of Appellate Court

in Regular Civil Appeal No.25 of 1980, Mr. Kedar endeavours to point

out finding recorded by Trial Court that property Block No.387 is a

self-acquired property has been reversed by Appellate Court on

consent given by respondents and not on merit. He would therefore

urge that such collusive finding and consequential decree would not

bind the appellants, who acquired title on the basis of sale deed

executed immediately after decision rendered in suit. In support of

his contention, Mr. Kedar relies upon observations of this Court in

case of Nathu Dhoju Gholap Vs. Ramchand Balchand and Anr 1 to

contend that although rule of lis pendens applies to consent decree or

compromise decree, it can be very well examined, if consent or

compromise is honest and not fraudulent or collusive. If final decision

is brought about by fraud or collusion, it cannot be said that lis

pendens was fairly decided and that decision cannot affect the rights

of the transferee pendente lite. Mr. Kedar would alternatively submit

that, the appellants could have treated as bona fide purchasers and 1 AIR 1946 Bombay 462 sa-224-2017.odt

their right to seek equitable partition could have been protected by

Executing Court in peculiar facts of this Court.

9. Per contra, Mr. Narwadkar, learned advocate appearing

for the contesting respondents would urge that the appellants being

pendente lite purchasers, they are not entitled to maintain objection

under Order XXI Rule 97, 98 or 101 of Civil Procedure Code. He

would point out that both Courts have elaborately dealt with the

contentions of objectioners/appellants and recorded clear finding that

the decree passed by the Appellate Court in Regular Civil Appeal

No.25 of 1980 is not collusive or obtained with intention to defraud

the appellants. He would therefore urge to dismiss the second appeal,

filed against concurrent findings of facts.

10. There is no dispute as to fact that the suit properties i.e.

Block No.387 (Survey No.93) was subject matter of the partition suit

i.e. Regular Civil Suit No.246 of 1974 instituted by Shankarrao

Kanakdande against Madhukar @ Yashwantrao Kanakdande and

others. On 15.01.1980, the decree was passed in the suit; however,

the land Block No.387 was excluded from decree of partition on

observation that it is a self-acquired property of Madhukar @

Yashwantrao Kanakdande. Immediately, within 10 days of decree i.e.

on 25.01.1980, Madhukar @ Yashwant Kanakdande transferred Block

No.387 in favour of Balwant and Mahalsakant. Later on, present

appellants/objectioners acquired the title under registered sale deed sa-224-2017.odt

from those pendente lite purchasers. Evidently, the sale deed executed

by Madhukar @ Yashwantrao Kanakdande was within ten days period

after the decree that is even before expiry of limitation for filing

appeal. Later on, Shankarrao Kanakdande preferred Regular Civil

Appeal No.25 of 1980 before learned District Judge at Parbhani,

which came to be allowed holding that property Block No.387

(Survey No.93, which is subject matter of present proceeding) was an

ancestral property and therefore, made part of the decree of partition

and separate possession. In that view of the matter, appellants cannot

deny that they are claiming title through pendente lite purchaser.

11. Mr. Kedar, learned advocate appearing for appellants

seeks to make exception from application of rigors of Section 52 of

Transfer of Property Act alleging that the decree passed by the

Appellate Court in Regular Civil Appeal No.25 of 1980 is behind back

of present appellants and same is collusive one. It is true that the

Appellate Court recorded consent of respondents to hold that land

Block No.387 (Survey No.93) is an ancestral property. However, there

is nothing to hold that consent was fraudulent or intended to deprive

or defraud the purchasers. Only because the respondents accepted the

status of property as ancestral, that does not mean that it was

fraudulent consent. The appellants could not bring any material to

substantiate their contention. The Executing Court as well as the

Appellate Court while dealing with the objection of appellants sa-224-2017.odt

elaborately recorded the finding in this regard, which is based on

appreciation of evidence. This Court did not find any reason to

disturb such findings.

12. Once the appellants are held to be pendente lite

purchasers, the rigors of Section 52 of Transfer of Property Act will

have to be given full effect. Rule 102 of Order XXI of Civil Procedure

Code thus takes into account the ground reality and refuses to extend

helping hand to purchasers of property in respect of which litigation is

pending. It would be unfair and inequitable to protect the transferee

pendente lite. Any such protection may frustrate the decree holder

from realizing fruits of his decree. The resistance from such

transferees is therefore nullified in light of operation of Section 52 of

Transfer of Property Act read with Rule 102 of Order XXI of Civil

Procedure Code. The Hon'ble Supreme Court of India in case of Usha

Sinha Vs. Dina Ram and Ors2 observed in paragraph no.16 that while

interpreting the provisions of the statute, the court must give due

weight to the intention of the statute in order to give effect to the

provisions. It is further observed that if we look at Section 52 of the

Transfer of Property Act and Rule 102 of Order 21 C.P.C., it is very

clear that the intention of the Parliament with which the statute had

been enacted is that the rights of one of the parties to the proceeding

pending before the court cannot be prejudiced or taken away or

adversely affected by the action of the other party to the same 2 2008 (7) SCC 144 sa-224-2017.odt

proceeding. In the absence of such restriction one party to the

proceeding, just to prejudice the other party, may dispose of the

properties which is the subject matter of the litigation or put any third

party in possession and keep away from the Court. By such actions of

the party to the litigation the other party will be put to more hardship

and only to avoid such prejudicial acts by a party to the litigation

these provisions are in existence. It is further observed that the

Courts are duty bound to give effect to the provisions of the statute.

13. In case of Silverline Forum Pvt. Ltd. Vs. Rajiv Trust3, it is

observed that where the resistance is caused or obstruction is offered

by a transferee pendente lite, the scope of adjudication is confined to

a question whether he was a transferee during the pendency of a suit

in which the decree was passed. Once the finding is in the affirmative,

the Executing Court must hold that he had no right to resist or

obstruct and such person cannot seek protection from the Executing

Court. It is further observed that for invoking Rule 102, it is enough

for the decree holder to show that person resisting the possession or

offering obstruction is claiming his title to the property after

institution of the suit in which decree was passed and sought to be

executed against the judgment debtor. If the said condition is fulfilled,

the case falls within the mischief of Rule 102 and such applicant

cannot reliance either on Rule 98 or Rule 100 of Order XXI.

3 (1998) 3 SCC 723 sa-224-2017.odt

14. In light of the aforesaid exposition of law, it is evident

that in absence of independent right to continue in possession, but on

the basis of pendente lite transfer made by judgment debtor, the

appeals/objections to execution of decree cannot be entertained

under provisions of Order XXI Rule 97, 98, 101 of Civil Procedure

Code.

15. The last question that requires consideration is, as to

whether the appellants would have right to claim equitable partition.

The issue is no more res integra. The Hon'ble Supreme Court of India

in case of Khemchand Shankar Choudhari and Another Vs. Vishnu

Hari Patil and Others4, observed in paragraph no.6 as under :

"In the case of transferees pendente lite also, if there is no dispute, the Collector may proceed to make allotment of properties in an equitable manner instead of rejecting their claim for such equitable partition on the ground that they have no locus standi. A transferee from a party of a property which is the subject-matter of partition can exercise all the rights of the transferor. There is no dispute that a party can ask for an equitable partition. A transferee from him, therefore, can also do so. Such a construction of Section 54 of the Code of Civil Procedure advances the cause of justice. Otherwise in every case where a party dies, or where a party is adjudicated as an insolvent or where he transfers some interest in the suit property pendente lite the matter has got to be referred back to the civil court even though there may be no dispute about the succession, devolution or transfer of interest. In any such case where there is no dispute if the Collector makes an equitable partition taking into consideration the interests of all concerned including those 4 (1983) 1 SCC 18 sa-224-2017.odt

on whom any interest in the subject-matter has devolved, he would neither be violating the decree nor transgressing any law. His action would not be ultra vires. On the other hand, it would be in conformity with the intention of the legislature which has placed the work of partition of lands subject to payment of assessment to the Government in his hands to be carried out 'in accordance with the law (if any) for the time being in force relating to the partition or the separate possession of shares'."

16. In view of the aforesaid exposition of law, it would be

open for the appellants to raise appropriate claim before the Collector

in execution of decree transmitted under Section 54 of Civil

Procedure Code being representative of interest of his vendor and

claim the right under judgment debtor. As he would be representing

judgment debtor, the decree can be enforced against him. However,

he can definitely seek equitable partition, so also the allotment of

property in his possession to the share of his vendor/judgment debtor.

If it is in conformity of the rule regarding partition and allotment of

the properties, the Collector can positively consider such request

without prejudice to the right of decree holder.

17. Although, it is submitted that the Executing Court or the