High Court

Legal Reasoning

109.1996SA.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 109 OF 19961.Suryakant s/o ShankarAge : 23 years,2.Baliram s/o ShankarAge : 22 years,3.Uttam s/o ShankarAge : 21 years,4.Padminibai w/o ShankarAge : 47 years, all Agriculturist and all R/o Gangabet,Taluka and District Nanded. … APPELLANTS (Original Plaintiffs)VERSUSManika s/o Datta(Died) Through L.Rs. 1.Smt. Rukhminbai Manikrao Sontakke Age : 70 years, Occ : Household, 2.Smt. Gangabet Manikrao SontakkeAge : 65 years, Occ : Household, 3.Vinod Manikrao Sontakke, Age : 30 years, Occ : Agri., 4.Balaji Manikrao SontakkeAge : 28 years, Occ : Agri., 5.Rajkumar Manikrao Sontakke Age : 25 years, Occ : Agri., 6.Datta Manikrao Sontakke Age : 22 years, Occ : Agri., 1/9 109.1996SA.odt7.Santosh Manikrao SontakkeAge : 18 years, Occ : Agri., All above 1 to 7 are R/o Gangabet, Tq. & Dist. Nanded. 8.Chandrakalabai Gangadhar Age : 40 years, Occ : Household, R/o Wanegaon, Tq. & Dist. Nanded. . … RESPONDENTS (Defendant)Mr. G.N. Chincholkar, Advocate for the Applicants Mr. B.G. Deshmukh, Advocate for Respondent Nos.1 to 8. …CORAM:ROHIT W. JOSHI, J.RESERVED ON :18th MARCH, 2025PRONOUNCED ON:10th JUNE, 2025 JUDGMENT :1.The present second appeal arises out of judgment anddecree dated 29.02.1992 passed by the learned Joint Civil Judge, SeniorDivision, Nanded dismissing suit for partition and separate possessionfiled by the present appellants, being Regular Civil Suit No.454/1990 asalso against judgment and decree dated 12.07.1995 passed by thelearned 3rd Additional District Judge, Nanded dismissing Regular CivilAppeal No.132/1992 preferred by the appellants/original plaintiffsagainst the judgment and decree passed by the learned Trial Court.Parties will be referred as "plaintiffs" and "defendants" in the judgmenthereinafter. 2/9 109.1996SA.odt2.Plaintiff Nos.1 to 3 are brothers and plaintiff no.4 is theirmother. The defendant is paternal uncle of plaintiff nos.1 to 3. The fatherof the plaintiffs expired in the year 1976. The dispute between theparties pertains to half portion of agricultural land admeasuring 7 acres4 gunthas out of land bearing Gut No.39 old survey no.23/A totaladmeasuring 15 acres 35 gunthas situated at Gangabet, Tq. & Dist.Nanded. 3.It is the case of the plaintiffs that in the year 1968, there waspartition between their grand father (Datta), father (Shankar) and uncle(Manik), who is defendant herein. The plaintiffs contended that the suitproperty i.e. half portion of land bearing Gut No.39 admeasuring 15acres 35 guntha was retained by grandfather Datta for his maintenanceduring his life time. The grandfather Datta expired in the year 1979. Theplaintiffs have therefore filed suit for partition and separate possession,being Regular Civil Suit No.454/1990. 4.The defendants appeared in the matter and opposed the suitcontending that land bearing Gut No.39 was partitioned between himselfand his brother Shankar, who is predecessor of plaintiffs. He contendedthat although, the property was so partitioned, it continued to be in thename of their father Datta. The defendants thereafter contended that3/9 109.1996SA.odtShankar, brother of plaintiffs was suffering from T.B. and for the purposeof his treatment his half share in Gut No.39 was sold during his life timeto one Babu Nagorao Thakur, vide sale deed dated 09.05.1973. Thedefendants then clarified that since the property was standing in thename of father Datta, the sale deed was executed by him, although thesale consideration was made over to Shankar, predecessor of plaintiffs.The defendants raised another contention that earlier the plaintiffs hadfiled suit for partition and separate possession with respect to the sameproperty, being Regular Civil Suit No.666/1984, which was withdrawnunconditionally, and therefore, subsequent suit filed for the same reliefwas not maintainable. 5.The learned Trial Court framed issues on which the partiesled their respective evidence. After hearing arguments of respectivesides, the learned Trial Court has dismissed the suit, vide judgment anddecree dated 29.02.1992. The learned Trial Court has held that the suitfiled by the plaintiffs was barred by res-judicata in view of dismissal ofearlier suit filed by them for the very same relief. As regards merits of thematter, the learned Trial Court has referred to the sale deed of the year1973, in which while mentioning boundaries of the demised property, itwas stated that on the northern side of the said property land owned bythe defendant was situated. The learned Trial Court has held that the4/9 109.1996SA.odtcontents of the sale deed were sufficient to prove the defence ofdefendants that northern half portion of Gut No.39 was allotted to hisshare in the partition of the year 1968. In view of the said findings, thesuit came to be dismissed. 6.As stated above, the plaintiffs preferred First Appeal, beingRegular Civil Appeal No.132/1992, which also came to be dismissed. Thelearned First Appellate Court has held that the suit filed by the plaintiffswas hit by Order XXIII Rule 1 of the Code of Civil Procedure, in view ofunconditional withdrawal of earlier suit filed for the same relief. Asregards merits of the matter, the learned First Appellate Court hasconcurred with the learned Trial Court to hold that the sale deedexecuted by Datta indicated that Gut No.39 was partitioned between thebrothers and northern half share was allotted to the share of thedefendants. 7.Being aggrieved by the said concurrent decrees the presentsecond appeal is preferred. The second appeal came to be admitted on13.08.1997 on the following substantial questions of law :- "A)The lower appellate Court has failed to exerciseproperly the appellate jurisdiction under Order 41 of CivilProcedure Code. 5/9 109.1996SA.odtB)The trial court erred in law in raising issue No.4-Aabout Resjudicata, inasmuch as the defendant has not raisedthe said plea in his written statement, and no evidence wasled on that point." 8.As regards first substantial question of law, perusal ofjudgment delivered by the learned First Appellate Court will demonstratethat the learned First Appellate Court has framed proper points fordetermination that arose for consideration in appeal. The learned Courthas recorded reasons on each point. As regards the maintainability of thesuit also the learned First Appellate Court has considered legal provisionsto arrive at conclusion that the suit was not maintainable (althoughconclusion is incorrect). 9.As regards merits of the matter, having perused thejudgment delivered by the learned First Appellate Court, it is noticed thatall the points have been answered upon reappreciation of evidence as isexpected of a First Appellate Court. The learned First Appellate Court hasproperly dealt with the matter as a final court of facts. The manner inwhich the learned First Appellate Court has dealt with the matterindicates that the learned First Appellate Court has conducted the matter6/9 109.1996SA.odtproperly dealing with all contentions and answering the same byreasoned judgment. The findings of fact with respect to partition of theyear 1968 appear to have been recorded on appreciation of evidence.The learned First Appellate Court has referred to the sale deed in whichdescription of the property sold in the year 1973 is given and on thebasis of the said sale deed, the defence of defendants is accepted. Thelearned First Appellate Court has also dealt with the pleadings andevidence of the plaintiffs and has recorded proper findings of fact on theaspect of partition of the year 1968 holding that the suit property wasallotted to share of defendant in the said partition. In this regard thelearned First Appellate Court has also referred to deposition of plaintiffno.1 - Suryakant, who has stated that the sale deed of the year 1973 wasexecuted by the grandfather Datta with the consent of his fatherShankar. He does not say that consent of his uncle/defendant was alsotaken by the grandfather. On this basis, learned First Appellate Court hasheld that the said statement also lends credence to the case of defendantthat in the partition of the year 1968, the suit property i.e. northern halfof Gut No.39 was allotted to the share of the defendant and southernhalf was allotted to Shankar and that the suit property was not retainedby the father for his maintenance. The learned First Appellate Court hasrecorded proper findings of fact. The learned First Appellate Courtdischarged duties properly dealing with the pleadings and evidence on7/9 109.1996SA.odtrecord. The first substantial question of law is, therefore, answeredagainst the appellants/plaintiffs and in favour of therespondents/defendants. 10.As regards the second substantial question of law, the firstsuit for partition i.e. Regular Civil Suit No.666/1984 was not decided onmerits, and therefore, Section 11 of the Civil Procedure Code will not beapplicable. The learned First Appellate Court is right in holding that thesubsequent suit is not barred by res-judicata. The finding of the learnedTrial Court that the subsequent suit was barred by res-judicata isincorrect. The learned First Appellate Court has however placed relianceon Order XXIII Rule 1(4)(b) to hold that since the earlier suit waswithdrawn unconditionally and without reserving any liberty to file afresh suit, subsequent suit was not maintainable in view of the saidprovision. The said finding by the learned First Appellate Court is legallyuntenable. It is well settled that provisions of Order XXIII Rule 1 andOrder IX Rule 9 of the Code of Civil Procedure are not applicable topartition suits and even if suit for partition is unconditionally withdrawnwithout obtaining leave to file fresh suit, a subsequent suit for partitionis maintainable. The second substantial question of law is, therefore,answered in favour of the appellants and against the respondent. 8/9 109.1996SA.odt11.However, in view of the findings recorded by both theCourts that the defendant has established that the suit property hadfallen to his share in the partition of the year 1968 and in view ofsatisfaction of this Court that the said findings do not warrant anyinterference having regard to jurisdiction under Section 100 of the Codeof Civil Procedure, the second appeal is dismissed. 12.Civil Application, if any, stands disposed of. [ROHIT W. JOSHI]JUDGESGA/9/9