High Court
Legal Reasoning
(1) sa-469-2020.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO.469 OF 2023WITHCIVIL APPLICATION NO.9239 OF 2021WITHCIVIL APPLICATION NO.796 OF 20211.Mina w/o Shrikant Ranmalkar,Age 69 Years, Occu Agriculture, 2. Sushil s/o Shrikant Ranmalkar, Age 42 Years, Occu: Agri. & Business, 3.Sunit s/o Shrikant Ranmalkar, Age 39 Years, Occu: Agri. & Business, All R/o Farm No.60, Pan No.VIPR1048B, General Arunkumar Vaidya Colony, Bhingar, To. Dist. Ahmednagar ... Appellants Versus1.Raghuvir s/o Ramchandra Rahinj,Died through Lrs.1-A.Ranjana Ankush Shinde Age: 42 yrs, occu. household. P/o Devakarwasti, At Post Choundi, Tal. Jamkhed Dist. Ahmednagar.2.Sham s/o Baburao Rahinj,Age 69 Years, Occu: Agri. & Service, 3.Indubai Bhalirao Dangane,(Deceased) Deleted 4.Balkrushna s/o Ganpatrad Rahinj,Age 65 Years, Occu: Agri. & Service, 5.Ramesh s/o Ganpatrao Rahinj,Age 62 Years, Occu: Agri. & Service, 6. Vitthal s/o Ganpatrao Rahinj,Age 56 Years, Occu: Agri. & Service, (2) sa-469-2020.odt7. Anil s/o Ganpatrao Rahinj,Age 56 Years, Occu: Agri. & Service, Nos.2, 4 to 7 All R/o Gawali Wada, Bhingar, Tq. Dist. Ahmednagar 8.Dattu s/o Baburao @ Ananda Rahinj Died Thruogh Lr's 8-A.Padmabai Dattu Rahinj Age:60yrs, Occ: Household R/o. Deulkar Wasti, At Pachondi Tq. Jamkhed, Dist. Ahmednagar.8-B. Sachin Dattu Rahinj Age: 62 Yrs, Occ: Household, 8-C.Sadhana Dattu Rahinj Age: 59 Yrs, Occ: Household 8-D. Archana Dattu Rahinj Age: 64, Occ:. Household All R/o Darewadi Tq & Dist - Ahemagnagar 9.Pandurang s/o Babanrao Rahinj,Age 67 Years, Occu: Agri., 10.Gautam s/o Vishnu Rahinj,(Dead) Through Legal Heirs 10-A.Manisha w/o Gautam Rahinj, Age 37 Years, Occu: Household, 10-B.Om s/o Gautam Rahinj, Age 10 Years, Cccu: Education, 10-C. Divya d/o Gautam Rahinj, Age 14 Years, Occu: Education, 10-D.Bharti d/o Gautam Rahinj, Age 16 Years, Occu: Education, No.10-B To 10-D Are Minors, Through Guardian Mother 10-A 11. Sugreev s/o Vishnu Rahinj, Age 34 Years, Occu: Agri., (3) sa-469-2020.odtR/O 3-A, Karmyogi, Opp. Santoshi Mata Mandir, Talegaon Dabhade, Tq. Mawal, Dist. Pune.12.Durva s/o Vishnu Rahinj,Age 33 Years, Occu: Agri., 13.Satyabhama w/o Vishnu Rahinj,Age 71 Years, Occu: Household, 14.Chandrabhaga w/o Babanrao Rahinj,Age 92 Years, Occu: HouseholdNos.8 to 10-D, 12 to 14 All R/o Near Jamkhed Naka, Nagar-Jamkhed Road, Darewadi, Tq. Dist. Ahmednagar 15.Madan s/o Baburao Rahinj,Age 72 Years, Occu: Agri., 16.Mahesh s/o Mohan Rahinj,Age 44 Years, Occu: Agri. & Service, 17. Santosh s/o Mohan Rahinj,Age 42 Years, Occu: Agri. & Service, 18. Ratanbai w/o Mohan Rahinj,Age 72 Years, Occu: Agri. & Household, 19. Kalpana Mohan Rahinj,Age 37 Years, Occu: Household, 20. Anusayabai Baburao Rahinj,(Dead) Deleted No.15 To 19 All R/o Saidapur Marathi Galli, Dharwad, Tq. Dist. Dharwad (Karnataka State) 21.Ajay s/o Suresh AwasrkarAge: 32 Years, Occ: Agril & Business, R/O. Awasrakar Mala, Sarasnagar, Ahmednagar, Dist. Ahmednagar. 22.Vijay s/o Dattatraya KarandeAge: 39 Years, Occu: Agril. & Business, R/o. Karande Mala, Darewadi, Ahmednagar (4) sa-469-2020.odt(Respondent Nos.21 and 22 are proposed additional respondents)..Respondents(Orig. Defendants)…Mr. G. K. Naik thigle, Advocate for the Appellants.Mr. S. N. Gaikwad and Mr. N. V. Gaware, Advocate for RespondentNos.3-A to 8-D, 9, 1-A to 10-D, 11 and 12.Mr. S. R. Deshpande, Advocate for Respondent Nos.1-A, 2, 4 to 7and 15 to 19.Mr. Y. V. Kakade, Advocate for Respondent Nos.21 and 22 (inCA/9239/2021).… CORAM : S. G. CHAPALGAONKAR, J. DATE : 13th MARCH, 2025.ORDER:-1.The appellants impugn judgment and decree dated26.02.2019 passed by learned District Judge-4, Ahmednagar inRegular Civil Appeal No.250/2013. The appellants were not partyto the original suit i.e. Regular Civil Suit No.99/2002. Therespondent nos.1 to 7 (original plaintiffs) had instituted RegularCivil Suit No.99/2002 seeking decree of partition and separatepossession in respect of suit properties, which includes agriculturalland as well as house properties. During pendency of said suit,present appellants purchased suit property bearing SurveyNo.168/2A admeasuring 1H 38R vide sale deed dated 15.06.2011from original defendant nos.1 to 7. Even after registration of saledeed, appellants were not impleaded as parties to the suit. FinallyRegular Civil suit No.99/2002 came to be decreed vide judgmentand decree dated 29.06.2013 upholding claim of plaintiffs forpartition and separate possession of suit properties. (5) sa-469-2020.odt2.The original defendants nos. 1 to 7, who were the vendors ofthe present appellants, filed Regular Civil Appeal No.236/2013before the District Judge, Ahmednagar, while theappellants/purchasers filed Regular Civil Appeal No.250/2013.Both Appeals were taken up for common hearing before learnedDistrict Judge and decided under common judgment dated26.02.2019. Pertinently, Regular Civil Appeal No.236/2013 filed byoriginal defendant nos.1 to 7 has been allowed, thereby settingaside judgment and decree dated 29.06.2013 passed by Civil Judge,Senior Division, Ahmednagar in Regular Civil Suit No.99/2002,whereas Regular Civil Appeal No.250/2013 filed by presentappellants/purchasers has been dismissed observing that they arependente lite purchaser having notice of pending litigation,therefore, they cannot be termed as bonafide purchasers for valuewithout notice and cannot assert independent right to assail decreepassed against their vendors. 3.Heard learned Advocates appearing for respective parties.4.Mr. Thigle, learned Advocate appearing for appellantssubmits that appellants are bonafide purchasers for value withoutnotice. The appellants were not made party in suit. The AppellateCourt failed to appreciate aforesaid facts and exercise discretionavailable under Section 53(A) r/w. Sections 41, 43 to 46 of Transferof Property Act in judicious manner. (6) sa-469-2020.odt5.Per contra, learned Advocates appearing for respectiverespondents/original plaintiffs support impugn judgment anddecree.6.Having considered submissions advanced, followingsubstantial questions of law arises for consideration in this SecondAppeal:(I)Whether Appeal at the instance of appellants/purchaserspendente lite was maintainable, when vendors ofappellants (original defendant nos.1 to 7) hadindependently challenged decree passed in suit?(II)Whether Appellate Court had occasioned to delve intomerits of contentions of appellants once very decreepassed in Regular Civil Suit No.99/2002 has been setaside in sister Appeal filed by vendors of presentappellants? Parties elaborately made submissions on aforesaidsubstantial questions of law. On their request matter is taken upfor final disposal at admission stage.7.Mr. Thigle, learned Advocate submits that once learnedDistrict Judge allowed sister appeal filed by vendors of appellants,there was no occasion for Appellate Court to make furtherobservations in Appeal filed by purchasers. The Appeal filed by (7) sa-469-2020.odtpurchasers ought to have been disposed of in terms of decreepassed in Appeal filed by vendors/original defendants. He wouldfurther submit that dismissal of Appeal filed by purchasers wouldtantamount to conflicting decrees, when Appeal filed by vendorshas been allowed. According to him, once substantive decreepassed in Regular Civil Suit No.99/2002 is set aside and suit itselfhas been dismissed while allowing vendors’ Appeal, observationsmade by Appellate Court against purchasers are otiose/redundant.There was no scope to dismiss Appeal causing unnecessaryprejudice to purchasers.8.The learned Advocates appearing for respective respondents,however, support impugned judgment and decree contending thatwhen defendants were not party to the suit, but filed Appealagainst decree, posing themselves as aggrieved persons, AppellateCourt was invited to consider merits of Appeal and render findingsthat appellants cannot be treated as bonafide purchasers withoutnotice. They invite attention of this Court to observations made bylearned District Judge that appellants had due notice of pendinglitigation, but they never chose to get themselves impleaded inpending suit. According to them, dismissal of Appeal would nottantamount to conflicting decree in facts of case.9.It is trite that, pendente lite purchaser would step into shoesof vendors, who are party to proceeding. As long as their vendors (8) sa-469-2020.odtare defending interest in property, pendente lite purchaser wouldnot get independent right to participate in proceeding. In givencase they may be permitted to participate in the proceeding, so asto ensure smooth execution of decree. In present case, whileRegular Civil Suit No.99/2002 was pending before Civil Judge,Junior Division at Ahmednagar, appellants purchased propertyfrom defendant nos.1 to 7 under registered sale deed dated15.06.2011. Later on, decree dated 29.06.2013 for partition andseparate possession came to be passed against vendors (defendantnos.1 to 7). They filed Regular Civil Appeal No.236/2013. Theappellants/purchasers also filed Regular Civil Appeal No.250/2013.Both Appeals were commonly heard and decided under impugnedcommon judgment and decree. The learned District Judge allowedRegular Civil Appeal No.236/2013 filed by vendors and set asidedecree dated 29.06.2013 passed in Regular Civil Suit No.99/2002.Eventually, suit for partition and separate possession has beendismissed. In that view of the matter, independent Appeal filed bypurchasers is held to be not maintainable. Once District Judge wasof the view that separate Appeal was not maintainable, there wasno reason to delve into other contentions raised in Appeal. In fact,appellants could not have any independent right to file Appealagainst decree, when their vendors were wholeheartedly defendinginterest in property. It is only when vendors are no more to defendinterest of purchasers or acting in collusion with adversarial party,
Decision
(9) sa-469-2020.odtindependent Appeal against substantive decree at the instance ofpurchasers could have been entertained. In facts of present case,Appellate Court could have disposed of Regular Civil AppealNo.250/2013 in light of decree passed in Regular Civil AppealNo.236/2013. In result, substantial questions of law framed aboveare answered accordingly, hence following order:ORDER a.Second Appeal is partly allowed. b.The common judgment and decree dated 26.02.2019 to theextent of dismissal of Regular Civil Appeal No.250/2013, is herebyquashed and set aside.c.Regular Civil Appeal No.250/2013 shall be treated asdisposed of as infructuous in view of judgment and decree in sisterAppeal i.e. Regular Civil Appeal No.236/2013.d.In view of disposal of Second Appeal, pending CivilApplications stand disposed of.(S. G. CHAPALGAONKAR)JUDGEDevendra/March-2025