High Court

Legal Reasoning

{1} A.O. 15-2024IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADAPPEAL FROM ORDER NO. 15 OF 2024WITH CA/4678/2024 IN AO/15/20241.Dnyandev @ Dnyaneshwar S/o. Nathrao Khiste … APPELLANT (Ori. Defendant No.2)VERSUS1.Kishor S/o. Murlidharrrao Ghuge,2.Mohal S/o. Murlidharrao Ghuge,3.Seema W/o. Bhagwan Sanap,4.Sujata W/o. Rajeshrao Jaibhaye,5.Varsha W/o. Sharad Mundhe,6.Murlidharrao S/o. Satwarao Ghuge,7.District Forest Officer,8.The State of Maharashtra … RESPONDENTS (Resp. Nos.1 to 5 – Ori. Plaintiff & Resp. No. 6 to 8 – Ori. Defendant Nos.1, 3 & 4 respectively)…Mr. Suraj R. Bagal – Advocate for Appellant Mr. S.V. Mundhe – Advocate for Respondent Nos.1 to 5Mr. D.B. Bhange – AGP for Respondent Nos.7 and 8, State….CORAM : SANDIPKUMAR C. MORE, J.DATE : 30th July, 2024ORDER : 1.Heard finally with consent of the parties at admission stage.Pooja Kale {2} A.O. 15-20242.The appellant who is original defendant No.2 in Regular CivilSuit No. 206 of 2012 has challenged the judgment and order dated09.01.2020 passed by the learned Principal District Judge,Parbhani (hereinafter referred to as, “the learned First AppellateCourt”) in Regular Civil Appeal No. 116 of 2014 in the presentAppeal from Order. Under the impugned order the learned FirstAppellate Court by setting aside the judgment and decree in theaforesaid Regular Civil Suit No. 206 of 2012 dated 09.07.2014 andremitted the matter back to the learned Civil Judge SeniorDivision, Parbhani (hereinafter referred to as, “the learned TrialCourt) for fresh consideration and particularly by allowing theparties to amend their pleading, lead additional evidence etc.3.Learned Counsel for appellant submits that, the suit is filedby original plaintiffs who are present respondent Nos.1 to 5, forpartition and declaration that the sale–deed executed by theirfather – Murlidharrao i.e. respondent No. 6 in favour of presentappellant being not binding on them, has already been dismissedby the learned Trial Court by framing proper issues and aftergiving findings thereon. However, the learned First Appellate Courthaving being concurred with the observations of the learned TrialCourt on the disputed aspects unnecessarily remanded the matterPooja Kale {3} A.O. 15-2024back to the learned Trial Court for fresh consideration. Accordingto him, it was not at all necessary for the learned First AppellateCourt to direct the parties to amend their pleading and to leadadditional evidence. Learned Counsel for respondent Nos.1 to 5 i.e.original plaintiffs supported the impugned judgment passed by thelearned First Appellate Court whereas the learned A.G.P.appearing on behalf of respondent Nos.7 and 8 prayed for passingsuitable order. Respondent No. 6 despite service remained absent.4.It is significant to note that, the original plaintiffs i.e. presentrespondent Nos.1 to 5 filed suit for partition and separatepossession of the suit property only land survey No. 29/2admeasuring 13 acres 30 gunthas situated at village Kehal, Tq.Jintur, Dist. Parbhani and also for declaring the sale–deedexecuted by respondent No. 6 i.e. their father in favour of presentappellant/defendant No. 2 being illegal and not binding uponthem. Defendant No.2 i.e. present appellant had only resisted thesuit by contending that, all the family members and joint familyproperties were not joint and that respondent No. 6 i.e. father ofthe plaintiffs had sold him the part of suit land for consideration ofRs.1,00,000/- (rupees one lac only) vide sale–deed dated17.11.1993 to meet the marriage expenses of his daughter and toPooja Kale {4} A.O. 15-2024repay the loan taken from other societies. On going through thejudgment of the learned Trial Court it appears that, the learnedTrial Court has dismissed the suit by observing that, the suit isbad for non–joinder of necessary parties and also for non–joinderof all joint family properties. The learned Trial Court has alsodismissed the claim of the plaintiffs that the sale–deed dated17.11.1993 is null and void and not binding on the plaintiffs. Forthis purpose, the learned Trial Court has observed that, the sale–deed and evidence of the plaintiffs could not establish that, it wasnominally executed and it was actually a mortgage by conditionalsale. The learned Trial Court also observed that, the said sale–deedwas executed by respondent No. 6 – Murlidhar out of his legalnecessity i.e. to meet the marriage expenses of his daughter andfor repayment of private loan. For that purpose, the learned TrialCourt has relied upon the observation of this Court in the case ofThe Designers Co.-Op. Hsg. Soc. Vs. Udhav S/o. Murlidhar Rasneand Ors. reported in 2011(1) ALL MR 346.5.However, it is significant to note that, the learned FirstAppellate Court even after confirming the observation of thelearned Trial Court, remanded the matter back to the learned TrialCourt for fresh hearing. On going through the judgment of thePooja Kale {5} A.O. 15-2024learned First Appellate Court it is clearly evident that, the learnedFirst Appellate Court has agreed for observation of the learnedTrial Court that, respondent No. 6 had sold the part of suitproperty to the appellant out of legal necessity. Further, thelearned First Appellate Court has also admitted the findings of thelearned Trial Court and observed that suit is bad for non–joinder ofnecessary parties and all joint family properties. It is extremelyimportant to note that, in paragraph No. 17 of the impugnedjudgment the learned First Appellate Court has observed asfollows:“17.Actually, the evidence available on record anddiscussed in the foregoing paras, if considered, then itcan be observed that the same is sufficient enough tohold that the appellants have failed to prove the suitclaim.”Thus, it appears that the learned First Appellate Court hasfound the evidence on record sufficient to hold that, respondentNos.1 to 5 i.e. plaintiffs failed to prove the suit claim.6.Even after that the learned First Appellate Court has remittedthe matter back to the learned Trial Court for framing necessaryissues in respect of limitation and on the aspect of legal necessity.It is important to note that, the limitation issue is not at allagitated by the present appellant. Moreover, the learned TrialPooja Kale {6} A.O. 15-2024Court dismissed the claim of the plaintiffs in respect of the sale–deed on the ground that, the recitals of the same proved that itwas a transaction of sale only and not a mortgage by conditionalsale. Nothing is discussed about the limitation aspect while givingsuch findings. Learned Counsel for appellant/defendant No.2vehemently argued that, when the limitation issue was not raisedby appellant before the learned Trial Court it was not necessary atall for the learned First Appellate Court to observe that, there wasnecessity of framing an issue of limitation. According to him,otherwise also suit of the plaintiffs is already dismissed on othercounts and therefore, such remand would only add one moreground for dismissal of the suit, which is not at all required. I findsubstance in the submission of learned Counsel for appellantbecause the learned First Appellate Court has already held thatthe evidence on record was enough to hold that the plaintiffs failedto prove their claim.7.The learned First Appellate Court has also insisted forframing specific issue on legal necessity. It is surprising to notethat, the learned First Appellate Court has given finding on thisaspect by observing that, due to marriage expenses and repaymentof loan, respondent No. 6 had sold the suit property toPooja Kale {7} A.O. 15-2024appellant/defendant No. 2. Moreover, it is also observed that,though the aspect of legal necessity as decided by the learned TrialCourt was impliedly accepted by the learned First Appellate Court,but it appears that the learned First Appellate Court found itnecessary to frame specific issue on that aspect merely becausespecific findings have not been recorded by the learned Trial Court.It is to be noted here that, the learned Trial Court by relying uponthe judgment of this Court in the case of The Designers Co.-Op.Hsg. Soc. (supra) specifically observed that, the recitals of sale–deed indicated legal necessity which being admissible in theevidence carries some weight in the facts and circumstances inwhich the transaction has taken place. It is already established onthe strength of sufficient evidence that, the plaintiffs failed to showthat it was conditional sale and therefore, the legal necessity ofrespondent No. 6 as mentioned in the sale–deed was established inselling the suit land to appellant. Thus, the issue of legal necessityis definitely answered by the learned Trial Court on the basis ofevidence on record though an issue to that effect was not framed.8.It is extremely important to note that, the learned FirstAppellate Court despite being agreed with the findings of thelearned Trial Court on the issue of legal necessity, has erroneouslyPooja Kale {8} A.O. 15-2024remitted the matter back and that to by directing the parties toamend the pleadings which is not at all permissible as the learnedTrial Court has already decided the matter considering thepleadings of the parties on record. Such enlargement of scope ofdispute between the parties without there being any demand fromeither of the parties, is not permissible. Further, there was nonecessity of framing the issue of limitation as it was never agitatedby appellant. Under such circumstances the learned FirstAppellate Court should have decided the matter on its own meritsand on the basis of evidence on record which according to itsufficient to decide the suit claim. In view of the same, the appealis hereby allowed and the impugned judgment and order dated09.01.2020 passed by the learned First Appellate Court i.e. learnedPrincipal District Judge, Parbhani in Regular Civil Appeal No. 116of 2014 is hereby set aside and the learned First Appellate Court isdirected to decide the appeal on its own merit and on the basis ofevidence on record.9.The Appeal from Order is accordingly disposed of alongwithpending Civil Application No. 4678 of 2024. [ SANDIPKUMAR C. MORE, J. ]Pooja Kale