Shri Kerul L. Doiphode & Ors. v. Krishnabai & Ors.

Mr. S. M. Oak i/b. Mr. Sagar Joshi, for the Applicants. CORAM: G.S.GODBOLE,J. DATE : 17th OCTOBER, 2011. P.C: Not on board. Upon mentioning, taken on board. 1 Leave to correct and convert the Civil Application into Review Petition, is granted. Amendment to be carried out forthwith in the Court. 2 RULE. Rule made returnable after 14 weeks. 2

3.rps11.11 3 In addition to service through Court, Advocate of the Applicants is also permitted to send private notice by RPAD or Speed Post AD and file Affidavit of Service only if acknowledgment is received or postal envelope is returned with remark “refused.” 4 There will be ad-interim relief in terms of prayer clause (c-i) which reads thus:- “ pending the hearing and final disposal of the Application, parties be directed to maintain status-quo with respect to suit property.” (G.S.GODBOLE,J.) 3

3.rps11.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION REVIEW PETITION NO. 11 OF 2011 IN SECOND APPEAL NO. 232 OF 1995 Shri Keru Laxman Doiphode & ors. ....Petitioners. Vs. Krishnabai w/o Balu Doiphode(deceased) & Ors. ....Respondents Mr. S.M. Oak i/b. Mr. Sagar Joshi, Advocate for Petitioners. Mr. S.S. Kulkarni with Ms. Vrishali Raje, Advocate for Respondent No. 3. CORAM:- GIRISH GODBOLE, J DATED:- FEBRUARY 6, 2012 P.C.

1. In the Order dated 17/10/2011 a typing error is noticed. In line-2 of paragraph-1 the word “Revision” should be corrected as “Review”. Office to correct the Order dated 17/10/2011.

2. Heard Mr. Oak for the Petitioners and Mr. Kulkarni for Respondent No. 3 who also represents estate of Respondent No. 1. Petition prays for setting aside of the abatement of the Second Appeal as against the 4

3.rps11.11 Respondent No. 2 Shankar Doiphode and for recalling the Order dated 16/9/2011 passed in Second Appeal No. 232 of 1995.

3. It is convenient to reproduce the said Order dated 16/9/2011 of which review is sought and the same reads thus : “1 Heard the learned Advocates for the parties. This Second Appeal is filed by the Original Defendant 2 Nos.1, 2 and 5 in Regular Civil Suit No.53 of 1972. Original Plaintiff – Krishnabai is Respondent No.1 and Original Defendant No.3- Shankar and Defendant No.4- Gangubai are Respondent Nos.2 and 3. The Appeal is admitted. Civil Application No. 241 of 2011 is filed by Gangubai, 3 Original Respondent No.3 in the Second Appeal who is the daughter of Krishnabai. According to Gangubai, there are no other heirs of deceased Krishnabai and Mrs. Raje, appearing for Gangubai makes a statement to that effect. Statement accepted. Hence, estate of Krishnabai, Original Plaintiff is duly represented. In so far as Respondent No.2 in Second Appeal – 4 Shankar is concerned, it is seen from perusal of Civil Application No. 474 of 2010 filed by the third party namely Bhimrao K. Doifode, appears that Shankar has died and Respondent No.2A to 2J in Civil Application No.474 of 2010 are shown as heirs of deceased Shankar. However, Appellants in the Second Appeal have not taken any steps for setting aside abatement of the Second Appeal as against deceased Shankar for bringing his heirs on record. Consequently, the Second Appeal abated against Respondent No.2, deceased Shankar. Respondent No.2 was Original Defendant No.3, the decree is passed for partition and separate possession by the Trial Court and the Regular Civil Appeal No.59 of 1999 filed by the Original Defendant Nos.1, 2 and 5 has been dismissed by the District Judge. Considering the nature of the suit, on account of the abatement of the Appeal as against Shankar, the entire Second Appeal will abate. 5 Hence, I pass the following order:- 5

3.rps11.11 (i) Second Appeal No.232 of 1995 is disposed off as abated. However this will not preclude the Appellants from filing appropriate Civil Application for setting aside the abatement and bringing heirs of deceased Respondent No.2- Shankar on record and as and when such application is filed, same will be considered on its own merits; (ii)In view of the order passed in the Second Appeal, Civil Application No.241 of 2011 does not survive and same is also disposed off. (iii)However, in case, the abatement of the Second Appeal is set aside and the Second Appeal is revived, without any formal Application being required to be filed by the Applicant – Gangubai; this Civil Application will also stands automatically revived and will be heard on merits. (iv)Interim relief which operated in the Second Appeal will stands vacated.”

4. It has now been disclosed in the Civil Application that original Defendant No. 3 Shankar Sakharam Doiphode had died on 18/7/1993. The Respondent No. 1 who is the mother of Respondent No. 3 had filed R.C.S. No. 53 of 1972 in the Court of CJJD, Indapur for partition and separate possession. In paragraph-10 of the plaint it was specifically stated that Defendant No. 3 Shankar Doiphode was joined as a formal party and no relief was claimed against him. Perusal of the last sentence in paragraph-3 of the Judgment and Decreed dated 9/4/1985 passed by the learned CJJD, Indapur in the Suit indicates that Shankar had not filed Written Statement and the Suit had proceeded exparte against him. The 6

3.rps11.11 Suit was decreed on 9/4/1985 and it is pertinent to note that only the Plaintiff and Defendant Nos. 1, 2 and 5 were held to be having a share in the suit lands. It is thus clear that there was no decree of partition and separate possession passed against the deceased Shankar Doiphode Defendant No. 3 and it is also clear that Shankar Defendant No. 3 was not allotted any share in the decree for partition. It is also clear that the original Plaintiff had not challenged the Decree of partition in so far as the Decree did not include the property which was shown to be in possession of Shankar Doiphode.

5. Aggrieved by this decree the original Defendant Nos.1, 2 and 5 filed an appeal in the District Court at Pune being Regular Civil Appeal No.526 of 1985, which was subsequently transferred to the learned ADJ, Baramati and was numbered as Regular Civil Appeal no. 51/B/1989. This Appeal was ultimately dismissed on 30th March, 1994 and the Decree of partition and separate possession has been confirmed. Even in the Appellate Court the deceased Shankar Doiphode who was original Defendant No. 3 and Respondent No. 2 in the Appeal was not represented. Thereafter the Second Appeal was filed. Thus at the time of filing of the Second Appeal itself Shankar Doiphode had died and he could not have 7

3.rps11.11 been impleaded as party Respondent in the Second Appeal. It is clear that the heirs of Shankar Doiphode were not brought on record during the pendency of the Appeal in the District Court. Consequently they can not be brought on record for the first time in this Court in the present Second Appeal. The question which however requires consideration is whether entire Civil Appeal No. 51 of 1989 will abate on account of the death of Shankar during the pendency of the Appeal. In my opinion, the answer is clearly in the negative. The said deceased Shankar Doiphode was joined as a formal party, had been proceeded exparte in the Trial Court and there was no decree passed either against him or in his favour in the Suit for partition. Hence on account of his death, the Appeal would not abate in its entirety.

6. It is thus clear that Shankar Doiphode was unnecessary and wrongly added as a party. In view of this, merely on account of death of Shankar Doiphode there can be no abatement of Second Appeal. This factum about exact date of death of Shankar Doiphode and the nature of decree for partition and separate possession in which no share had been allotted to Shankar or no share had been allotted as against the interest of Shankar was not brought to the notice of this Court when the Order dated 8

3.rps11.11 16/9/2011 was passed. In view of this, the Order of this Court dated 16/9/2011 had proceeded on the basis that since one of the Defendant in a Suit for partition has died, entire Second Appeal would abate.

7. From the facts narrated above, it is thus clear that on account of an error apparent on the face of record, the Order dated 16/9/2011 was passed. This error will have to be corrected by recalling that order. Hence Order dated 16/9/2011 is recalled. In the title of the Second Appeal No. 232 of 1995, the Appellant is directed to delete the name of Respondent No. 2 Shankar Doiphode. Consequently, Civil Application no. 241 of 2011 filed by the Respondent No. 3 will stand restored and revived and the same may be placed before the regular bench. On account of revival of the Second Appeal, the Interim Relief which was operating in the Second Appeal will also stand revived. (GIRISH GODBOLE, J)