Civil Application No. 4849 of 2024 · High Court
Case Details
2024:BHC-AUG:27814 Tauseef 12-SA.305.2020-J.odtININ THETHE HIGHHIGH COURTCOURT OFOF JUDICATUREJUDICATURE ATAT BOMBAYBOMBAYBENCH AT AURANGABADBENCH AT AURANGABADCIVIL APPELLATE JURISDICTIONCIVIL APPELLATE JURISDICTIONSECOND APPEAL NO.305 OF 2020SECOND APPEAL NO.305 OF 2020 1.1.Bhanudas Narayan Kolhe (Dead),Bhanudas Narayan Kolhe (Dead),2.2.Maruti Bhanudas Kolhe. Maruti Bhanudas Kolhe. ...Appellants...AppellantsVersusVersus1.1.Karbhari Narayan Kolhe, Karbhari Narayan Kolhe, 2.2.Sitaram Dagdu Kolhe (Dead),Sitaram Dagdu Kolhe (Dead),2A.2A.Madhav Sitaram Kolhe, Madhav Sitaram Kolhe, 2B.2B.Karbhari Sitaram Kolhe, Karbhari Sitaram Kolhe, 2C.2C.Chandrabhaga Sitaram Kolhe, Chandrabhaga Sitaram Kolhe, 2D. 2D. Hausabai Tabaji Gunjal, Hausabai Tabaji Gunjal, 2E. 2E. Lahanbai Yadav Rahane, Lahanbai Yadav Rahane, 2F. 2F. Sumanbai Badshaha Bhagwat, Sumanbai Badshaha Bhagwat, 2G. 2G. Kamal Annasaheb Dushing, Kamal Annasaheb Dushing, 2H. 2H. Kaushabai Somnath Kale, Kaushabai Somnath Kale, 2I. 2I. Shobha Santosh Chaudhari, Shobha Santosh Chaudhari, 3.3.Sambhaji Kondaji Kolhe (Dead), Sambhaji Kondaji Kolhe (Dead), 3A. 3A. Ravindra Sambhaji Kolhe, Ravindra Sambhaji Kolhe, 3B. 3B. Dilip Sambhaji Kolhe, Dilip Sambhaji Kolhe, 3C. 3C. Savita Chandrabhan Mande, Savita Chandrabhan Mande, 3D. 3D. Ujawala Rajendra Karpe, Ujawala Rajendra Karpe, 3E. 3E. Anita Raghunth Rakshe, Anita Raghunth Rakshe, 3F. 3F. Kavita Dipak Ghodake, Kavita Dipak Ghodake, 1 of 10 Tauseef 12-SA.305.2020-J.odt4.4.Ashok Kondaji Kolhe, Ashok Kondaji Kolhe, 5.5.Yashodabai Kondaji Kolhe, Yashodabai Kondaji Kolhe, 5A. 5A. Gangadhar Kondaji Kolhe, Gangadhar Kondaji Kolhe, 5B. 5B. Sitaram Kondaji Kolhe, Sitaram Kondaji Kolhe, 5C. 5C. Vasant Kondaji Kolhe, Vasant Kondaji Kolhe, 5D. 5D. Bhikubai Kondaji Kolhe, Bhikubai Kondaji Kolhe, 5E. 5E. Chahabai Babuao Gopale, Chahabai Babuao Gopale, 5F. 5F. Babai Sakharam Wale, Babai Sakharam Wale, 5G. 5G. Hirabai Dattatraya Argade, Hirabai Dattatraya Argade, 6. 6. Sitabai Baburao Mutkule, Sitabai Baburao Mutkule, 7.7.Somnath Baburao Torkadi, Somnath Baburao Torkadi, 8.8.Rameshwar Lift Irrigation Sanstha, Rameshwar Lift Irrigation Sanstha, 9.9.Mankeshwar Sahakari Pani Purvatha, Mankeshwar Sahakari Pani Purvatha, 10.10.Nanasaheb Raghunath Gadekar, Nanasaheb Raghunath Gadekar, 11.11.Sharadkumar Karbhari Kolhe. Sharadkumar Karbhari Kolhe. …Respondents…RespondentsWITHWITHCIVIL APPLICATION NO.4849 OF 2024CIVIL APPLICATION NO.4849 OF 2024ININSECOND APPEAL NO.305 OF 2020SECOND APPEAL NO.305 OF 20201.1.Bhagirthibai Murlidhar Gorde. Bhagirthibai Murlidhar Gorde. ...Applicant...ApplicantVersusVersus1.1.Karbhari Narayan Kolhe, Karbhari Narayan Kolhe, 2.2.Sitaram Dagdu Kolhe (Dead),Sitaram Dagdu Kolhe (Dead),2A.2A.Madhav Sitaram Kolhe, Madhav Sitaram Kolhe, 2 of 10 Tauseef 12-SA.305.2020-J.odt2B.2B.Karbhari Sitaram Kolhe, Karbhari Sitaram Kolhe, 2C.2C.Chandrabhaga Sitaram Kolhe, Chandrabhaga Sitaram Kolhe, 2D. 2D. Hausabai Tabaji Gunjal, Hausabai Tabaji Gunjal, 2E. 2E. Lahanbai Yadav Rahane, Lahanbai Yadav Rahane, 2F. 2F. Sumanbai Badshaha Bhagwat, Sumanbai Badshaha Bhagwat, 2G. 2G. Kamal Annasaheb Dushing, Kamal Annasaheb Dushing, 2H. 2H. Kaushabai Somnath Kale, Kaushabai Somnath Kale, 2I. 2I. Shobha Santosh Chaudhari, Shobha Santosh Chaudhari, 3.3.Sambhaji Kondaji Kolhe (Dead), Sambhaji Kondaji Kolhe (Dead), 3A. 3A. Ravindra Sambhaji Kolhe, Ravindra Sambhaji Kolhe, 3B. 3B. Dilip Sambhaji Kolhe, Dilip Sambhaji Kolhe, 3C. 3C. Savita Chandrabhan Mande, Savita Chandrabhan Mande, 3D. 3D. Ujawala Rajendra Karpe, Ujawala Rajendra Karpe, 3E. 3E. Anita Raghunth Rakshe, Anita Raghunth Rakshe, 3F. 3F. Kavita Dipak Ghodake, Kavita Dipak Ghodake, 4.4.Ashok Kondaji Kolhe, Ashok Kondaji Kolhe, 5.5.Yashodabai Kondaji Kolhe, Yashodabai Kondaji Kolhe, 5A. 5A. Gangadhar Kondaji Kolhe, Gangadhar Kondaji Kolhe, 5B. 5B. Sitaram Kondaji Kolhe, Sitaram Kondaji Kolhe, 5C. 5C. Vasant Kondaji Kolhe, Vasant Kondaji Kolhe, 5D. 5D. Bhikubai Kondaji Kolhe, Bhikubai Kondaji Kolhe, 5E. 5E. Chahabai Babuao Gopale, Chahabai Babuao Gopale, 5F. 5F. Babai Sakharam Wale, Babai Sakharam Wale, 3 of 10
Legal Reasoning
Tauseef 12-SA.305.2020-J.odt5G. 5G. Hirabai Dattatraya Argade, Hirabai Dattatraya Argade, 6. 6. Sitabai Baburao Mutkule, Sitabai Baburao Mutkule, 7.7.Somnath Baburao Torkadi, Somnath Baburao Torkadi, 8.8.Rameshwar Lift Irrigation Sanstha, Rameshwar Lift Irrigation Sanstha, 9.9.Mankeshwar Sahakari Pani Purvatha, Mankeshwar Sahakari Pani Purvatha, 10.10.Nanasaheb Raghunath Gadekar, Nanasaheb Raghunath Gadekar, 11.11.Sharadkumar Karbhari Kolhe, Sharadkumar Karbhari Kolhe, 12.12.Bhanudas Narayan Kolhe (Dead), Bhanudas Narayan Kolhe (Dead), 13.13.Maruti Bhanudas Kolhe. Maruti Bhanudas Kolhe. …Respondents…Respondents_____________________________________________________Adv. S. T. Shelke h/f. Adv. Shrinivas S. Wagh for the Appellants inSA/305/2020. Adv. Tanishqa P. Shirsath for the Applicant in CA/4849/2024. Adv. Umar Sayed h/f. Adv. K. N. Shermale for Respondent No.1.(through AGP Holder of R/11). _____________________________________________________CORAM :S. G. CHAPALGAONKAR, J.DATED : 25th NOVEMBER 2024.JUDGMENT:-1. The Appellants have filed this second appeal aggrieved bythe judgment and decree dated 27th December 2018 passed by learnedAd-hoc District Judge-2, Sangamner in Regular Civil Appeal No.15 of2016, thereby partly modifying judgment and decree dated 23rdDecember 2005 passed by learned 2nd Joint Civil Judge Junior Divisionat Sangamner in Regular Civil Appeal No.588 of 2000. 4 of 10 Tauseef 12-SA.305.2020-J.odt2.The parties are referred as per their original status in the suitfor the purpose of brevity. The Plaintiffs filed Regular Civil Suit No.588of 2000 seeking the relief of declaration, injunction and recovery ofRs.3,000/- against the Defendants contending that suit properties, i.e.,Survey Nos.281, 200/3 and 200/2 and common well with electricmotor situated at Survey No.217/1B+2B is belonging to Plaintiffs andDefendant No.1. The Suit properties also include house propertiesopen land situated at Dhandarphal, Taluka Sangamner, DistrictAhmednagar. 3.The Trial Court dismissed the suit vide judgment and decreedated 23rd December 2005. However, in appeal filed by Plaintiffs, thedecree has been modified to the extent of suit Well situated at SurveyNo.217/1B+2B, thereby granting 1/6th share each to Plaintiff No.2 andDefendant No.1. The 1/3rd share has been granted jointly to DefendantNos.2A to 2I and 1/3rd share jointly has been granted to DefendantNos.3A to 3F, Defendant No.4 and Defendant No.5A to 5G. Furtherdeclaration is granted that Plaintiff Nos.2 and Defendant No.1 have ½share each in electric motor of 5 HP installed on suit-well. TheDefendant No.1 is perpetually restrained from interfering with the jointpossession of Plaintiff No.2 over the suit-well and the electric motoruntil partition is effected by mades and bounds. The partition inpursuance of aforesaid declaration has been directed to be effected by5 of 10 Tauseef 12-SA.305.2020-J.odtappointing the Court Commissioner. The rest of claim of Plaintiffs hasbeen rejected. The aforesaid decree of the Appellate Court is subjectmatter of the present second appeal. 4.Apparently, as per Appellate Court’s decree, shares have beenallotted to parties referred above only in respect of SurveyNos.217/1B+2B particularly as regards to suit-well. 5.At this stage, the Appellants have filed a compromise pursisstating that the partition dispute between the Appellants andRespondent Nos.1 and 11 has been settled. Appellants have no claimsor grievance against Respondent No.2 (2A to 2I), 3 (3A to 3F), 4, 5 (5Ato 5G) and 6 to 10. The Appellants have accordingly filed pursis todelete Respondent Nos.2 (2A-2I), 3(3A-3F), 4, 5 (5A-5G) and 6 to 10from the array of the Respondents. The pursis dated 30th September2004 is taken on record and marked as Exhibit-X1 for identification. 6.On 30th September 2024, the second appeal was taken onboard on the request of the Appellants. The submission was made thatthe Appellants as well as Respondent Nos.1 and 11 have arrived atamicable settlement hence they have filed Consent Terms on record.The Consent Terms are already taken on record and marked as “X” foridentification and statement has been made that in pursuance of the6 of 10
Legal Reasoning
Tauseef 12-SA.305.2020-J.odtpursis Exhibit-X1, Appellants wants to withdraw the appeal against restof the Respondents. 7.Accordingly, the Registrar (Judicial) of this Court wasdirected to verify the contents of Consent Terms and also report theCourt, if the aforesaid compromise terms affect the right of otherRespondents. The Vakalatnama on behalf of Respondent Nos.1 and 11was taken on record along with pursis for withdrawal of appeal againstremaining Respondents. 8.On 1st October 2024, the learned Registrar (Judicial)submitted his report dated 30th September 2024 along withcompromise pursis, which is marked as Exhibit-X. The learnedRegistrar (Judicial) observed that the rights of other parties in theother properties which are stated to be ancestral properties will have tobe taken into consideration. In view of such observations, it would bebetter to obtain consent of other parties for accepting present ConsentTerms and passing the decree to that effect. Accordingly, the learnedAdvocate for the Appellants was directed to make his furthersubmissions. Thereafter, matter was adjourned to 26th October 2024. 9.Mr. S. T. Shelke, learned Advocate appearing for theAppellants and Mr. K. N. Shermale, learned Advocate for RespondentNo.1 advanced their submissions. Mr. Shelke filed one more Pursis7 of 10 Tauseef 12-SA.305.2020-J.odtmarked as Exhibit X-2 for identification, indicating that RespondentNo.1- Karbhari S/o. Narayan Kolhe died on 20ied on 20thth November 2024. November 2024.Leaving behind Respondent No.11-Sharadkumar Karbhari Kolhe as hisLeaving behind Respondent No.11-Sharadkumar Karbhari Kolhe as hislegal heir. The Appellants are permitted to carry amendment in titlelegal heir. The Appellants are permitted to carry amendment in titleclause of the appeal memo to that effect. clause of the appeal memo to that effect. 10.Having considered submissions, it can be observed that thesubstantive suit filed by the Appellants seeking decree of partitionagainst the Defendants was dismissed by the Trial Court. However, theAppellate Court approved the right of the Plaintiffs along withDefendant Nos.1, 2A to 2I, 3A to 3F, Defendant No.4 and DefendantNos.5A to 5G in respect of the suit-well situated in SurveyNo.217/1B+2B at village Dhandharphal, Budruk, Taluka Sangamner.Rest of the claim of the Plaintiffs was dismissed and the decree passedby the Trial Court has been modified to that extent. Apparently, noneof Defendant has been aggrieved by the judgment and decree as passedby Trial Court or modified by the Appellate Court. They acceptedverdict as it is. 11.Now the Plaintiffs/Appellants arrived at compromise withDefendant Nos.1 and 11 in respect of rights approved by AppellateCourt as per decree dated 27th December 2018, in terms of thesettlement. The compromise would sub-serve decree passed by theAppellate Court and shall be binding only on Plaintiffs and Defendant8 of 10 Tauseef 12-SA.305.2020-J.odtNos.1 and 11. The compromise terms are duly signed by theAppellants and Respondent No.11 for himself and for RespondentNo.1, i.e., Karbhari Narayan KolheKolhe being sole legal representative andon the basis of general power-of-attorney holder. The terms are dulyverified before the Registrar of this Court, the report of verificationindicates that the parties have duly verified compromise terms and putup their signatures. 12.In light of the aforesaid facts, following order is passed:-(i)Second Appeal No.305 of 2020 is partly allowed.(ii)The decree passed by First Appellate Court in R.C.A.No.15 of 2016 is modified in terms of compromise pursisfiled on record of this Court at Exhibit ‘X’ withoutprejudice to the rights of other Defendants.(iii)The second appeal stands dismissed as withdrawn asagainst Respondent No.2 (2A to 2I), 3, (3A to 3F), 4, 5(5A to 5G) and 6 to 10. Their rights shall be governedby the judgment and decreed dated 27th December 2018passed by the First Appellate Court in R.C.A. No.15 of2016.(iv)Second appeal stands disposed of in the aforesaid terms.Decree be drawn accordingly. 9 of 10
Decision
Tauseef 12-SA.305.2020-J.odt(v)In view of disposal of second appeal, civil applicationdoes not survive and it is also disposed of. (S. G. CHAPALGAONKAR, J.)10 of 10