High Court
Legal Reasoning
SA 232 25 J.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 232 OF 2025 WITHCIVIL APPLICATION NO. 5474 OF 2025 IN SA 232/2025 Devidasrao s/o Tanajirao Deshmukhand others…Appellants VERSUSShalanbai w/o Uttamrao Deshmukh(died) through L.Rs. And others …Respondents…Advocate for Appellants : Mr. Vishant Prabhakar KadamAdvocate for Respondent nos. 1/1, 1/2, 2/1, 2/2 & 11 : Ms. A.N. AnsariAdvocate for Respondent nos. 3, 5 to 10 : Mr. Salunke Mayur VasantCORAM: SHAILESH P. BRAHME, J.RESERVED ON PRONOUNCED ON :: 19.08.2025 26.08.2025ORDER : Heard both the sides.2.The appellants/original defendant nos. 3 to 9 have approached HighCourt under Section 100 of the Code of Civil Procedure, challenging thejudgment and decree dated 30.12.2016, passed in Regular Civil Suit No.5/2011, by the trial Court, as well as judgment and decree dated11.07.2024 passed by the Appellate Court in Regular Civil Appeal No.17/2017. The respondent nos. 1 to 11 are the original plaintiffs. Theremaining respondents are defendant nos. 1, 2 and 10. Parties are referredto their original status. 3.While assailing the concurrent findings of facts granting decree ofpartition and separate possession, the appellants have pressed intosubstantial questions of law incorporated in para No. 2 of the appeal-memo.Those are pertaining to limitation, entitlement of the parties to claim1/9 SA 232 25 J.odtpartition and to receive share and the effect of decree of partition passed on23.09.1982 in Regular Civil Suit No. 20/1979. Defendant nos. 3 to 9 are thepurchasers. It is apposite to refer to the genealogy :(Mohanrao)(-Deubai) Kauslyabai Indubai Shalanbai Sundarabai Shantabai Kamalbai-Madhavrao Sumitrabai (D-1) (D-2) (Pl- 1) (Pl-2) (issueless) (D-10) Digambar Dattarao (Pl-11) (D-2/1) Suresh Umesh (Pl-2/1) (Pl-2/1) Suman Mangal Sakharam (D-1/1) (D1/2) (D1/3) Rajeshwar Sanjay Balasaheb (Pl-1/1) (Pl-1/2) (Pl-1/3) Aruna Laxman Balasaheb Manik Shobhabai Chayabai Shivaji Gajanan (Pl-3) (Pl-4) (Pl-5) (Pl-6) (Pl-7) (Pl-8) (Pl-9) (Pl-10)4.Before filing Regular Civil Suit No. 5/2011 by the plaintiffs forpartition, possession and declaration that the sale-deeds are not binding andvoid, there was earlier round of litigation amongst the family members,which had reached up to the Apex Court. The relationship amongst themembers of the family are undisputed. As per the information supplied bythe parties, Deubai and Kamalbai-Defendant no. 5 (in RCS No. 20/1979) areno more. Kamalbai was issueless.5.Following sale-deeds were executed, which are not disputed :Sr.No.Date of sale-deedVendorsAreaLand Survey No.Name of purchaser1)02.01.1970(Exh. 162)Deubai,Sundarabai (P2)Shantabai (P 3 to10)4 Acres110Umaji (D5)2)12.01.1970(Exh. 163)DeubaiSundarabai (P-2)Shalanbai (P-1)Digambar (P-11)8 Acres 22 R5 Acres90/A110/AKamlabai2/9 SA 232 25 J.odt3)12.05.1977(Exh. 164)Madhavrao(D-10)8 Acres 22 R90/1/A90/1/BUmaji (D5)4)14.05.1980(Exh. 165)Kamlabai5 AcresDevidas Baburao (D-3&4)6.Defendant no. 1 Kausalyabai and defendant no. 2 Indubai had filedRegular Civil Suit No. 20/1979 for partition, separate possession anddeclaration that the sale-deeds referred above were bad in law and notbinding. The sale-deed dated 14.05.1980 (Exh. 165) was not the subjectmatter of that suit. Deubai Mohanrao Kalyankar was defendant no. 1 andpresent plaintiffs, their sisters and purchasers were the defendants. It wasin respect of land Survey No. 110 and Survey No. 90/A. Suit was contestedby the defendants. It was decreed vide judgment dated 23.09.1982. It’soperative part is as follows :“OrderThe suit of the plaintiffs is decreed against the defendantsas follows:It is hereby declared that both the plaintiffs are having1/8th share each in the suit fields s.no. 110 adm. 9 acres 8Gts. and s.no. 90/A adm. 8 acres 22 Gts. situated atPimpalgaon Mahadeo, Tq. Nanded, both the plntffs. areentitled for possession by effecting the partition as permetes and bounds.The partition of the suit fields and separation of theshares shall be made by the Collector or any Gazetted Sub-Ordinate of the Collector deputed by him in this behalf inaccordance with the law (if any) for the time in forcerelating to partition or the separate possession. And afterthe partition as per metes and bounds the plaintiffs beallotted the shares as per their own choice. The decree3/9 SA 232 25 J.odtshall be sent to the Collector for partition and separatepossession as per sec. 54 of C.P.C.It is hereby declared that the sale deeds exh. 68, 69, 72and the sale deed dated 14.5.1980 executed in favour ofDevidasrao and Baburao sons of Tanajirao Deshmukh arenot binding on the present plaintiffs. The defts.no. 6 & 7 do pay the entire costs of this suit ofthe plaintiffs, they and other defendants do bear their owncosts.” 7.Being aggrieved, Regular Civil Appeal No. 234/1982 was preferred bydefendant no. 5/Umaji. It was dismissed vide judgment dated 18.10.1989.Thereafter Second Appeal No. 65/1990 was filed, which was also dismissedon 14.07.2009. The decree is further confirmed by the Apex Court.8.The judgment and decree dated 23.09.1982 passed in Regular CivilSuit No. 20/1979 was confirmed up to Apex Court. Defendant No. 5 was aparty to the earlier litigation, who is the appellant before this Court.Defendant nos. 6 to 9 are heirs of defendant No. 5. The vendors-defendantnos. 3, 4 (in RCS No. 20/1979) and Kamalabai were also parties to earlierlitigation. In this backdrop, again, plaintiffs filed present suit No. 5/2011for partition, possession and declaration in respect of same subject matterand additionally a house property. They contended that there was nopartition in the family and the sale-deeds executed by the members of thefamily are not binding. It was contested by the defendant nos. 1 and 2 only,mainly on the ground of res judicata due to the decision rendered in RegularCivil Suit No. 20/1979.9.Interestingly, defendant nos. 3 to 10 did not file written statement inRegular Civil Suit No. 05/2011 and matter proceeded without their writtenstatement. It was decreed partly on 30.12.2016, awarding 1/6th share tothe daughters of Mohanrao and Deubai and directions were given to adjust4/9 SA 232 25 J.odtthe equities by allotting the shares to the respective vendors.10.The appellants, who were defendant nos. 3 to 9 did not contest thesuit. They did not prefer appeal or cross objection before lower AppellateCourt. The plaintiffs had filed Regular Civil Appeal No. 17/2017 againstthe judgment and decree dated 30.12.2016 passed in Regular Civil Suit No.05/2011. The lower Appellate Court modified the decree vide judgmentdated 11.07.2024, holding that the sale-deeds in question are not binding onthe plaintiffs and all daughters are entitled to 1/6th share in the suitproperties.11.The learned counsel for the appellants submits that present secondappeal deserves consideration on the substantial questions of law pressedinto service. The decree of the lower Appellate Court holding that the sale-deeds are not binding, is perverse. It is submitted by the learned counselthat present suit is filed on 28.01.2011, challenging the sale-deeds of 1970,1977 and 1980, which is grossly barred by time. It is further submitted thatthere was already partition in view a decree passed in earlier suit andtherefore further decree of partition is uncalled for and unsustainable.12.Per contra, learned counsel Mr. Salunke and Mrs. Ansari wouldvehemently submit that the daughters of Mohanrao and Deubai are entitledto equal share. The appellants did not challenge the decree passed by thetrial court by preferring appeal in the lower Appellate Court and they areestopped from filing second appeal. It is further submitted that nosubstantial question of law involved in the appeal.13.I have considered the rival submissions of the parties. Followingadmitted facts emerged in the appeal :(a)Regular Civil Suit No. 20/1979 was filed forpartition, possession and declaration, pertaining to the sale-deeds, was decreed and it is confirmed up to the Apex5/9 SA 232 25 J.odtCourt.(b)The decree, which is confirmed in earlier round oflitigation, is under execution.(c)Present Regular Civil Suit No. 5/2011 is filed forpartition, possession and declaration pertaining to the sale-deeds in respect of the self-same subject matter.(d)The appellants/original defendant nos. 3 to 9 didnot file written statement.(e)The appellants/original defendant nos. 3 to 9 didnot prefer appeal or cross-objection before the lowerAppellate Court. (f)Mohanrao and Deubai had six daughters, who arethe only sharers of the joint family property. 14.I have already recorded that earlier suit was filed by defendant No. 1Kausalyabai and defendant No. 2 Indubai against their sisters and vendorsfor self-same relief and subject matter. The decree passed in Regular CivilSuit No. 20/1979 is confirmed up to the Supreme Court. Due to the decreeof partition, the status of the family ceased to be that of joint family. Undersuch circumstances, present Regular Civil Suit No. 05/2011 was absolutelynot maintainable. There was no need to solicit any decree of partition ordeclaration. Only marginal changes due to the death of the sharers areneeded to be taken into account for working out the shares. I am of theconsidered view that entire exercise of filing present suit, preferring appealbefore the lower Appellate Court and then filing present second appeal isfutility. It was beyond jurisdiction of the Civil Court to grant any relief whenalready decree passed by the competent Court in Regular Civil Suit No.20/1979 was confirmed up to the Supreme Court.6/9 SA 232 25 J.odt15.It is wholly unwarranted to render any finding regarding the sale-deeds, which are subject matter of the present suit, when sale-deeds dated02.09.1970, 12.1.1970, 12.05.1977 and 14.05.1980 are held to be notbinding on the then plaintiffs -Kauslyabai and Indubai. The decree passed inthe present suit by the Trial Court, which is modified by the lower AppellateCourt in respect of the sale-deeds is inconsequential and unexecutable.16.The appellants, who are original defendant nos. 3 to 9 did not preferappeal against the decree passed by the Trial Court on 30.12.2016. Theydid not even contest the suit by filing written statement. The second appealpreferred at their instance cannot be entertained. The parties to the secondappeal are bound by the decree passed in Regular Civil Suit No. 20/1979.17.The substantial question of law pressed into service sans merit. Partiesare bound by the decree passed in earlier round of litigation which isconfirmed up to the Supreme Court. Though the lower Appellate Courtentertained the appeal and modified the decree, which was in fact notrequired, the declaration that all the daughters of Mohanrao and Deubai areentitled to equal share of 1/6th cannot be faulted. The said part is inconsonance with the decree confirmed up to the Supreme Court in RegularCivil Suit No. 20/1979. The number of sharers is reduced from 8 to 6 due todeath. In that view of the matter, I find no reason to entertain the secondappeal and the same is liable to be dismissed.18.The learned counsel for the appellant seeks to rely on the judgment ofK. Arumuga Velaiah Vs. P.R. Ramasamy and another; (2022) 3 SupremeCourt Cases 757. This judgment is cited to buttress the plea of res judicata.I am bound to follow the judgment because in the present case also I haverecorded that the decree passed in Regular Civil Suit No. 20/1979 for self-same relief would operate as res judicata.19.The learned counsel Mr. Mayur Salunke for the respondent Nos. 3, 5to 10 refers to the judgment of Venu Vs. Ponnusamy Reddiar (D) through7/9
Legal Reasoning
SA 232 25 J.odtL.Rs. And another; 2017 AIR (SC) 2447. This is on the point of limitation.In the case at hand, the question of limitation does not arise because thesubsequent suit for partition is held to be barred by res judicata.20.Further reliance is placed on the judgment of Gajara Vishnu GosaviVs. Prakash Nanasaheb Kamble and others; (2009) 10 Supreme Court Cases654. It is on the point that the purchasers of co-coparcener undividedinterest is not entitled to possession of his interest unless he sues forpartition and ask for allotment of share. The principles laid down cannot bedisputed, but those cannot be made applicable to the present case.21.The Second Appeal is dismissed with clarification that Kausalyabai,Indubai, Shalanbai, Sundarabai, Shantabai and Sumitrabai, shall be entitledto receive 1/6th share each in the suit properties. Accordingly, their heirsshall receive the shares 1/6th per strip. ( SHAILESH P. BRAHME, J.)22.After pronouncement of the judgment, learned counsel Mr. Kadam forthe appellants prays for continuation of the statement made by learnedcounsel for the respondents. In pursuance of the statement, the possessionhas not been parted yet. It is requested that appellants’ desire to approachthe Apex Court.23.The request is opposed by the respondents. It is submitted that partiesto the litigation have share in the suit property partition has not beeneffected by metes and bounds. They are deprived of their respective shares.25.In pursuance of the statement, the status quo as to the possession is inoperation till this date. I am inclined to grant status quo for further fourweeks. There shall be status quo for further four weeks with a rider that thesame shall stand vacated after expiration of the period without reference to8/9
Decision
SA 232 25 J.odtthe Court.26.It is made clear that if the appellants do not approach the Apex Court,order of status quo shall cease to have effect.27.Pending Civil Application is disposed of. ( SHAILESH P. BRAHME, J.)mkd/-9/9