[Cites 1, Cited by 0]
Bombay High Court
Smt. Manoramabai Rayaba Chavan ... vs Gopaldas Narayandas Barshikar ... on 11 March, 2026
2026:BHC-AUG:10347
1 ao 41.24 & ao 61.23
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPEAL FROM ORDER NO. 41 OF 2024
Smt. Manoramabai Rayaba Chavan
Since deceased through L.Rs.
Mrs. Vaishali Vijaykumar Deshmukh .. Appellant
Versus
Gopaldas Narayandas Barshikar
Since deceased through his L.Rs.
Pradeep @ Sandip Gopaldas Barshikar
and others .. Respondents
Shri Devidas R. Shelke, Advocate for the Appellant.
Mrs. Charuta S. Deshmukh, Advocate for the Respondent Nos.
1A to 1D.
AND
APPEAL FROM ORDER NO. 61 OF 2023
Sandeep Gopaldas Barshikar .. Appellant
Versus
Subhash Rayba Chavan and others .. Respondents
Mrs. Charuta S. Deshmukh, Advocate for the Appellant.
Shri Devidas R. Shelke, Advocate for the Respondent Nos. 1, 6, 9,
10 and 2-A.
CORAM : SHAILESH P. BRAHME, J.
CLOSED FOR ORDER ON : 05.03.2026
ORDER PRONOUNCED ON : 11.03.2026.
2 ao 41.24 & ao 61.23
FINAL ORDER :
. Heard both sides.
2. In both appeals judgment and order of remand passed on
06.04.2023 in R. C. A. No. 626 of 2012 is questioned. Appeal
from Order No. 41 of 2024 is preferred by the original plaintiff
No. 4. Appeal from Order No. 61 of 2023 is preferred by the
defendant No. 1-A.
3. For the sake of convenience the parties in Appeal from
Order No. 41 of 2024 are referred as per their original status in
the Trial Court. Appellant and original respondent Nos. 9 to 11
are original plaintiffs in R.C.S. No. 725 of 2000, which was for
partition, separate possession and mesne profit. The
respondents are the defendants.
4. The controversy pertains to undivided joint family of
Laxman Mehekarikar and his family members. On 21.05.1980
sons of Laxman transferred 59/80th share by registered sale deed
to the defendant No. 1 and 2. His daughters transferred 3/48th
share by distinct sale deed on the same day to the defendant No.
1 and 2. Plaintiffs claimed to have purchased 21/80th share from
Manik Laxman Mehekarikar on 06.11.1987. The contesting
parties are the purchasers of the undivided share and they have
rival claims for their ownership and possession over the shares
alienated to them.
3 ao 41.24 & ao 61.23
5. Plaintiffs contention is that the defendants unauthorizedly
occupied the undivided joint family property, hence suit was
filed. It is contested by the defendants on the ground that after
the alienations on 21.05.1980 no salable interest was left for
Manik to alienate 21/80th share to the plaintiffs.
6. The Trial Court dismissed the suit vide judgment dated
26.09.2012. Being aggrieved R.C.A. No. 626 of 2012 was filed by
the plaintiffs. The Appellate Court found that the suit property
was not properly described and the shares claimed by the
parties were unable to be identified. It is further recorded that
appointment of Court Commissioner for measuring and
identifying the shares would resolve the controversy and the
matter was remanded to the Trial Court.
7. Learned counsel Mr. Devidas Shelke appearing for the
plaintiffs submits that order of remand is unwarranted and has
been passed in routine manner. It is submitted that the
Appellate Court should have decided the matter on merits and
should have appointed Commissioner instead of remanding it to
the Trial Court. It is submitted that the sale deed executed on
21.05.1980 is bad in law and the decree of the Trial Court should
have been reversed.
8. Both sides have canvassed the submissions in pursuance of
substantial questions of law framed by this Court vide order
4 ao 41.24 & ao 61.23
dated 08.10.2025 in both the appeals.
9. Per contra, learned advocate Mrs. Charuta Deshmukh
appearing for the defendants submits that remand order was not
required and Appellate Court had ample power to decide the
matter on merits. It is submitted that Manik had no salable
interest and alienation of 21/80th share is void. It is further
submitted that already exercise of appointing Commissioner was
undertaken in the Trial Court and the map was produced on
record. The decree should have been confirmed by the lower
Appellate Court.
10. Both sides are claiming that lower Appellate Court should
have exercised the powers conferred by Order XLI Rule 24 and
33 of the Code of Civil Procedure (for the sake of brevity and
convenience hereinafter referred as to the "C.P.C.") in deciding
the appeal on merits, instead of remanding the matter to the
Trial Court. In the Trial Court, Commissioner was appointed for
measurement of the suit property, who was D. W. No. 2. The
measurement map was produced at Exhibit 211. The Execution
of the sale deeds which are referred in the earlier paragraphs are
not disputed. The facts in issue are as to whether defendants are
owners of 59/80th share and 3/48th share and as to whether
plaintiffs are owners of 21/80th share. Their entitlement and
claim can be examined on the basis of material placed on record.
11. Just because there is interese dispute regarding
5 ao 41.24 & ao 61.23
entitlement to the extent of respective shares, remanding the
matter for resorting to Order XXVI Rule 10 of the C. P. C. is not
the solution. Appellate Court has ample power U/O XLI Rule 24
and 33 of the C. P. C. to deal with factual aspect of the matter.
Taking recourse to Order XXVI Rule 9 of the C. P. C. at the
appellate stage is also permissible, if so required. I find
substance in the submissions of both learned counsels that order
of remand is unwarranted.
12. Its nobody's case that opportunity of hearing was not
extended to either of the sides. Neither is it a case that
additional material is available which could not be placed on
record in the Trial Court. In this backdrop order of remand is
likely to consume more time.
13. Learned advocate Mr. Shelke has relied on the judgments
of the Supreme Court and Gauhati High Court in the matters of
Jagannathan Vs. Raju Sigmani and another reported in 2012(5) SCC 540,
Akshay Automobiles Vs. Union of India and others reported in (2004) 2
Gauhati L.R. 187 and Municipal Corporation, Hyderabad Vs. Sunder Singh
reported in 2008(8) SCC 485 to buttress that order of remand is
unwarranted and it was passed routinely. Reliance is also placed
on the judgment of this Court in the matter of Yasin Gula Shkalkar
Vs. Maruti Nagnath Anware reported in LAWS (BOM)-2023-1-210 to
support that Appellate Court has power to appoint the Court
Commissioner. The propositions are not disputed. Those can be
made applicable to the present case.
6 ao 41.24 & ao 61.23
14. I am inclined to answer substantial questions of law in
favour of both the appellants in holding that impugned judgment
and order is unsustainable and Appellate Court can very well
deal with the matter on merits. I, therefore, pass following order.
ORDER
A. Appeal from Order No. 41 of 2024 and Appeal from Order
No. 61 of 2023 are allowed.
B. Impugned judgment and order dated 06.04.2026 passed by
District Judge - 6, Ahmednagar in R.C.A. No. 626 of 2012
is quashed and set aside.
C. Parties shall appear before the Appellate Court on
30.03.2026.
D. The Appellate Court shall decide the appeal on its own
merits as expeditiously as possible and in any case not
more than 10 (ten) months from the date of appearance of
the parties.
[ SHAILESH P. BRAHME J. ]
bsb/March 26
