Bombay High Court
Shobha Panditrao Salve @ Kusum Shankar ... vs Dhanraj Pandit Salve on 22 September, 2025
2025:BHC-AUG:26046 1 SA.314-23+1.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH
AT AURANGABAD
SECOND APPEAL NO. 314 OF 2023
WITH
CIVIL APPLICATION NO. 7618 OF 2023
IN SA/314/2023
SHOBHA PANDITRAO SALVE @ KUSUM SHANKAR BAGUL
DEAD DELETED AS PER COURT ORDER AND OTHERS
VERSUS
DHANRAJ PANDIT SALVE
...
Advocate for Appellants : Mr. Mayure Pramod C.
Advocate for Respondent No.1/Caveator : Mr. Mohit S. Shah.
...
CORAM : SHAILESH P. BRAHME, J.
DATE : 22.09.2025
FINAL ORDER :-
1. Heard both sides.
2. Second appeal is preferred against concurrent findings of
facts in decreeing the suit of respondent No.1 for partition
allotting 1/5th share in the suit house and possession. The
decree of the Trial Court is confirmed by Lower Appellate
Court. The defendants are before this Court as appellants.
3. Respondent No.1 is original plaintiff who had filed
Special Civil Suit No.177 of 1996 for partition and possession.
It is contended that he is begotten from Pandit and defendant
No.1 Indubai, from first marriage. His father Pandit performed
second marriage with defendant No.2 Shobha @ Kusum.
2 SA.314-23+1.odt
Defendant Nos.3 to 5 are born out of the said wed lock.
Defendant No.1 Indubai is his biological mother who is stated
to have filed Special Civil Suit No.60 of 1980 for declaration
and possession. It was dismissed. He claimed share in the
joint family property i.e. CTS.No.4090/1, situated at Dhule.
4. Appellants contested the suit on the ground that it is
barred by limitation. The suit is not maintainable due to
dismissal of earlier Special Civil Suit No.60 of 1980 by
implication of res-judicata. It is further contended that present
suit is not maintainable under Order II Rule 2.
5. Parties adduced oral evidence. By judgment and decree
dated 19.11.1998, suit was decreed partly awarding 1/5 th
share to the respondent/plaintiff. The defendants carried
Regular Civil Appeal No.144 of 2012 unsuccessfully.
Respondents had filed Special Civil Suit No.60 of 1980 for
declaration and possession against present appellant No.1 only.
It was contested on merits. Thereafter, it was dismissed on
21.12.1982. The decree was not challenged further.
Respondent No.1 is stated to have attained age of majority in
the year 1984. The respondents filed present suit on
06.05.1989.
3 SA.314-23+1.odt
6. Pandit, husband of appellant No.1 and father of
respondent No.1 died on 20.02.1979. Respondents were
residing separately. They had filed Special Civil Suit No.60 of
1980 for declaration that they are heirs of deceased Pandit and
for possession of the suit house. It was contested by
appellant/Shobha who claimed to be legally wedded wife of
Pandit. It was not the suit for partition and possession. It was
held that the subject matter was joint family properties. The
then plaintiffs were not held entitled to have joint possession.
Other appellants were not parties in the suit. The suit was
dismissed vide judgment dated 21.12.1982 on merits.
Respondent No.1 was minor when suit was dismissed.
7. A plea of res-judicata was raised in the written statement
and issue to that effect was framed by the Trial Court. It was
held that suit was barred under Section 11 of CPC. Lower
Appellate Court formulated point No.6 for res-judicata and
held that present suit is maintainable. The inconsistent finding
of res-judicata have been pressed into service to constitute
substantial questions of law.
8. Earlier Special Civil Suit No.60 of 1980 was filed for
declaration of status and possession against appellant No.1
only whereas present suit is filed for partition and possession
4 SA.314-23+1.odt
against all the appellants including respondent No.2 Indubai,
the biological mother. Only subject matter is same but the
parties, relief claimed and the issues decided are completely
different. The Lower Appellate Court rightly held that suit is
not barred by res-judicata. I am unable to accept the
submissions of the learned counsel Mr. Mayure for the
appellants.
9. Learned counsel Mr. Mayure would further submit that
present suit is barred by Order II Rule 2 of CPC. Earlier civil
suit was filed for declaration of the status and possession
immediately after death of Pandit. Respondent No.1 Dhanraj
was minor. The suit was prosecuted by respondent No.2
Indubai. There was no cause of action for claiming partition.
When Indubai failed to protect the interest of respondent No.1,
after attaining majority respondent No.1 was denied his right
in the joint family property, he was required to file present suit
for partition. It cannot be said that the cause of action for
partition was available and relief of partition could have been
claimed in Special Civil Suit No.60 of 1980. I find no substance
in the submissions of learned counsel Mr. Mayure that suit is
barred by Order II Rule 2 of CPC.
5 SA.314-23+1.odt
10. The next submission canvassed by learned counsel Mr.
Mayure is 'limitation'. Both Courts below dealt with plea of
limitation by assigning reasons. Both the Courts below held
that suit is not barred by limitation. Present suit is filed on
06.05.1989. It is recorded that respondent No.1 attained age
of majority in the year 1984. The limitation for filing suit for
partition did not commence after decree passed in Special Civil
suit No.60 of 1980. When respondent No.1 is excluded and
the exclusion is known to him would a starting point of
limitation. It has come on record the date of birth of
respondent No.1 Dhanraj is 01.06.1966. His biological mother
was unable to protect his interest and the present appellants
excluded him from the joint family benefits would constitute
cause of action. Both the Courts below have rightly recorded
that suit is within limitation.
11. Learned counsel Mr. Mayure vehemently submitted that
the suit filed by respondent No.1 is not maintainable because
his paternity was challenged. Especially, after dissolution of
marriage, there was no access between his biological parents
since 1963. Trial Court framed issue No.1 to that effect and it
was answered in his favour. Lower Appellate Court also held
that he is son of deceased Pandit. My attention is adverted to
6 SA.314-23+1.odt
the judgment of the Trial Court. It has been categorically
recorded that respondent/Shobhabai had filed application
under Section 372 of Indian Succession Act soliciting
succession certificate and the present respondents were
opponents in that application. It is averred in the application
that respondent No.1 is son of respondent No.2.
12. My attention is adverted to examination-in-chief of
respondent No.1 stating that he is son born out of wed lock of
Pandit with Indubai. The cross-examination of D.W.3 Prashant
shows that birth certificate of respondent No.1 was found in
the suit house which is indicative of the fact that respondent
No.1 is concerned with the family. Both the Courts below have
rightly recorded the findings that respondent No.1 is son of
Pandit.
13. Learned counsel for the appellants has relied on the
judgment of Dadu Dayalu Mahasabha, Japur (Trust) Vs.
Mahant Ram Niwas and another ; [2008 (4) Civil LJ 730] to
buttress that suit is barred by res-judicata. The principles of
res-judicata are explained by Hon'ble Apex Court which cannot
be doubted but the appellants have failed to make out a case to
attract Section 11. Further reliance is placed on the judgment
of Gajanan R. Salvi Vs. Satish Shankar Gupte and others ;
7 SA.314-23+1.odt
[2005 (1) Mh.L.J. 966]. The facts are distinguishable from the
case at hand. I have already observed that Order II Rule 2 is
not attracted in the present case.
14. Trial Court granted 1/5th share to the plaintiff in the suit
house. Subsequently, appellant No.1 Shobhabai as well as
respondent No.2 Indubai are no more. Appellant Nos.2 to 4
and respondent No.1 are the only surviving heirs of deceased
Pandit. They would inherit the suit house in equal share.
Therefore, decree passed by the Trial Court needs modification
to the extent that the surviving heirs are entitled to 1/4th share.
(i) Second appeal is dismissed.
(ii) The judgment and decree passed by the Trial
Court stands modified to the extent that appellant
Nos.2 to 4 and the respondent shall get 1/4th share
each in the suit house.
(iii) No order as to costs.
(iv) In view of disposal of second appeal, pending civil
application does not survive. Civil application as
such is disposed of.
(SHAILESH P. BRAHME, J.)
...
vmk/-
