High Court
Facts
(1) sa-470-2023.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADSECOND APPEAL NO.470 OF 2023WITHCIVIL APPLICATION NO.11179 OF 20231.Maruti S/o Baliram Pimple,Age: 73, Occu: Agril,R/o Bavi, Tq. Bhoom, Dist: Osmanabad.2.Vikram S/o Baliram Pimple,Age: 67 years, Occu: Agril,R/o: Bavi, Tq. Bhoom, Dist. Osmanabad...Appellants (Orig. Defendant Nos.6 and 7)Versus1.Prayagabai larcnan Pimple @Prayagabai W/o. Hanumant Iandge,Age: 63 years, Occu.: Household,R/o: Vetal Zopadpatti, Pimpari Chinchwad,Pune, Tq. and Dist. ..Orig. Plaintiff2.Anusaya W/o Bapurao Bhuibhar,Deceased through LR's2/AChandrakant S/o Ankush Bhuibhar,Age: 52 years, Occu: Agri,R/o: Bangala Pimpla, Tq. Georai, Dist. Beed.2/B. Datta S/o Ankush Bhuibhar,Age: 47years, Occu: Agri,R/o: Bangala Pimpla, Tq. Georai, Dist. Beed.2/C. Rakhmaji S/o Bapurao Bhuibhar,Age: 67years, Occu: Agri,R/o: Bangala Pimpla, Tq. Georai, Dist. Beed.2/D.Ramkisan S/o Bapurao Bhuibhar,Age: 62 years, Occu: Agri,R/o: Bangala Pimpla, Tq. Georai, Dist. Beed.2/E. Baban S/o Bapurao Bhuibhar,Age: 57 years, Occu: Agri,R/o: Bangala Pimpla, Tq. Georai, Dist. Beed.2/F.Babasaheb S/o Bapurao Bhuibhar,Age: 52 years, Occu: Agri,R/o: Bangala Pimpla, Tq. Georai, Dist. Beed.
Legal Reasoning
(7) sa-470-2023.odt“A transferee from a party of a property which is the subjectmatter of partition can exercise all the rights of the transferor.There is no dispute that a party can ask for an equitablepartition. A transferee from him, therefore, can also do so.Such a construction of section 54 of the Code of CivilProcedure advances the cause of justice. Otherwise in everycase where a party dies, or where a party is adjudicated as aninsolvent or where he transfers some interest in the suitproperty pendente lite the matter has got to be referred backto the civil court even though there may be no dispute aboutthe succession, devolution or transfer of interest. In any suchcase where there is no dispute if the Collector makes anequitable partition taking into consideration the interests ofall concerned including those on whom any interest in thesubject matter has devolved, he would neither be violating thedecree nor transgressing any law.”7.In light of aforesaid exposition of law, once decree is sentunder Section 54 of Code of Civil Procedure for effecting actualpartition and allotment of share of agriculture land in pursuance todecree, pendente lite purchasers (appellants herein) can definitelyseek allotment of properties in equitable manner. The Collectorthen make equitable partition taking into consideration interest ofall the concerned.8.In that view of the matter, no substantial question of lawarises for consideration in this Appeal. Hence, Appeal standsdismissed with liberty in favour of appellants to pursue theirremedy during execution of decree in terms of law laid down bySupreme Court of India in case of Khemchand ShankarChoudhari and Another (supra).
Arguments
(2) sa-470-2023.odt3.Padminbai Ramkrishan Bhuibhar,Age: 57 years, Occu.: Agril,R/o Ieet, Tq. Bhoom, Dist: Osmanabad.4.Gahininath S/o Nivrutti Gharat,Age: 67 years, Occu.: Agril,R/o: C/o Babanrao Pachpute,Post Kashti, Tq. Shrigonda, Dist. Ahmednagar.5.Sukhadev S/o Nivrutti Gharat,Age: 53 years, Occu.: Agri,R/o: C/o Babanrao Pachpute,Post Kashti, Tq. Shrigonda, Dist. Ahmednagar.6.Vitthal S/o Changoji Gaikwad(Deceased)..Abated7.Janardhan S/o Changoji Gaikwad,Age: 67 years, Occu: Agril,R/o: Jektewadi, Near Jodwadi,Tq. Gewai, Dist. Beed.8.Bhimabai Narayan Surve,Age: 89 years, Occu: Agril,R/o: Chumbli,Tq. Bhoom, Dist. Osmanabad...Respondents (Orig. Defendants) …Mr. N. S. Tekale, Advocate for the Appellants.Mr. S. R. Mantri h/f Mr. S. S. Gangakhedkar, Advocate forRespondent Nos.5 and 6.… CORAM : S. G. CHAPALGAONKAR, J. DATED : 01st APRIL, 2025.ORDER:- 1.The appellants/original defendant nos.6 and 7 impugnjudgment and decree dated 28.03.2023 passed by Adhoc DistrictJudge-1, Bhoom in Regular Civil Appeal No.1/2015, therebyupholding judgment and decree dated 20.11.2014 passed by CivilJudge, Junior Division, Bhoom in Regular Civil Suit No.201/1991. (3) sa-470-2023.odt(Hereinafter, parties are referred to by their original status for thesake of convenience and brevity).2.The respondent no.1-Prayagabai instituted suit seekingpartition and separate possession of suit properties. She claimedthat suit properties, which are forming part of Gut Nos.196, 197and 209 situated at village Bavi Tal. Bhoom, particularly describedin plaint paragraph no.1 are ancestral properties of plaintiffs anddefendants. She contends that one Ganpati Pimple was originalowner. He had four daughters and one son. Ganpati expired in theyear 1948 leaving behind Laxman as sole surviving coparcener.Ganpati had daughter namely Padminbai from his wife Sindhu.However, after birth of Padminbai, Sindhu expired. Thereafter,Laxman performed second marriage with Gayabai. The plaintiff isdaughter of Laxman from Gayabai. The whereabouts of Padminbaiare not known since last 30 to 35 years. Laxman also expired in theyear 1970. As such, after death of Laxman, plaintiff, her motherGayabai and grandmother Laxmibai acquired ownership of the suitproperties. Gayabai performed second marriage. Therefore,plaintiff and mother of Laxman i.e. Laxmibai became owner of suitproperties. At the time of Laxman's death, plaintiff was minor.She was looked after by her grandmother. Accordingly, name ofplaintiff was recorded alongwith Laxmibai in mutation record.After death of Laxmibai, Bhimabai and Anusay became her legal (4) sa-470-2023.odtheirs. The plaintiff became owner of 2/3rd share alongwithdefendant nos.1 and 2. The plaintiff claimed her share in the suitproperty, but defendant nos.1 and 2 refused to effect partition,which is stated to be cause of action for filing Regular Civil SuitNo.178/1988 against defendant nos.1 and 2. However, said suitwas withdrawn and present suit for partition is filed withpermission.3.The defendant nos.1 and 2 filed written statement anddenied relationship with plaintiff. Initially, suit was dismissed fornon-joinder of necessary parties. However, in Regular Civil AppealNo.95/2002, it was remanded back to Trial Court with direction toplaintiff to add all heirs of Ganpati and Laxmibai in suit.Accordingly, defendant nos.3 to 5 were added as party being heirsof Ganpati and Laxmibai. The defendant nos.6 and 7 are added, asdefendant nos.1 and 2 sold out portion of suit property to themduring pendency of suit. After remand of suit it was decreedholding that plaintiff is daughter of deceased Laxman. Similarly,defendant nos.6 and 7 failed to prove that they are bonafidepurchasers. In result, decree for partition was passed. Theoriginal defendant nos.1, 6 and 7 appealed against decree of TrialCourt to District Judge. The learned District Judge dismissedappeal with marginal modification as to allotment of share andheld that plaintiff is having 5/16th share, defendant no.3 is having (5) sa-470-2023.odt3/16th share, defendant nos.1 and 2 are having 1/8th share each,defendant nos.4 and 5 are having joint 1/8th share and defendantnos.8 and 9 are having joint 1/8th share. In this background,purchasers/defendant nos.6 and 7 have filed present SecondAppeal.4.Mr. Tekale, learned Advocate appearing for the appellantsraises two major objections to the decree under Appeal. Accordingto him, defendant nos.1 and 2 are held entitle to receive 1/8th sharein suit property on partition. There is no dispute about alienationof suit property by defendant nos.1 and 2 in favour of appellantsunder registered sale deed. Therefore, Appellate Court ought tohave adjusted shares of vendors of appellants against landpossessed by appellants. Secondly, he submits that plaintiff failedto describe suit property by giving requisite details of fourboundaries in the plaint. The suit property is part of large chunkof lands scattered in various gut numbers. Since description ofproperty was inadequate, suit ought to have been dismissed forwant of compliance under Order VII Rule 3 of Code of CivilProcedure.5.Having considered submissions advanced and from reasoningadopted by Courts below, it can be observed that suit propertieshave been described in plaint giving survey numbers, which arenow converted into gut numbers. Assuming that part of property (6) sa-470-2023.odtin respect to gut numbers is ancestral property of plaintiff anddefendant nos.1 to 4, there appears sufficient compliance requiredunder Order VII Rule 3 of Code of Civil Procedure. Rule 3stipulates that if the subject-matter of the suit is immovableproperty, the plaint shall contain a description of the propertysufficient to identify it, and, in case such property can be identifiedby boundaries or numbers in a record of settlement or survey, theplaint shall specify such boundaries or numbers. In present case,plaintiffs have specified gut numbers of each of land, which issubject matter of suit. Therefore, contention of appellants as tonon-compliance of Rule 3 of Order VII of Code of Civil Procedurecannot be countenanced.6.Second contention raised by appellants/purchasers ofdefendant nos.1 ans 2 that once share is allotted to defendant nos.1and 2 in partition, appellants being purchasers put in possession ofdefinite share, they can be adjusted by allotment of that land toshare of defendant nos.1 and 2 and continue ownership andpossession of appellants/purchasers as per sale deed. The aforesaidlimb of argument can be answered on the basis of law espoused bySupreme Court of India in case of Khemchand ShankarChoudhari and Another Vs. Vishnu Hari Patil and Others1,wherein it is held as under:1(1983) 1 SCC 18.
Decision
(8) sa-470-2023.odt9.In view of dismissal of Second Appeal, pending CivilApplication stands disposed of.(S. G. CHAPALGAONKAR)JUDGEDevendra/April-2025