Dismissed

1.SHRI Gulam Mohammad Usaman Mulla,Deceased His L.R'S 1/1 Smt. Khatunbibi Gulam Mohammad Mulla v. 1.MOHMUDMIYA Gulamsaheb Mulla,Deceased His L.R'S.Smt. Najama Abdul Wahab Mulla and Ors.

Bombay HC6 Aug 2009SA/99/2009

Case brief

AI extract

What is this about?

The High Court held that appellants could not lead additional evidence under Order XXIX Rule 27 CPC and found no title established via inquiry report. Suit for partition dismissed, appeal and civil applications dismissed.

What did the court decide?

Second appeal dismissed; civil applications disposed of as they did not survive.

1.SHRI Gulam Mohammad Usaman Mulla,Deceased His L.R'S 1/1 Smt… — Partition | Bombay HC (2009)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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SECOND APPEAL NO. 99 OF 2009

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Gulam Mohammed Usman Mulla & Ors. ..... ..... ...Appellants V/s Mohmudmiya Gulamsaheb Mulla & Ors. ..... ........Respondents.

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Mr.R.R.Salvi, Adv. for the appellants.

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Mr.Sachin Dhakephalkar i/by Mr.Vinod Shinde, Adv. for the Resdt.Nos.1, 7 & 8

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PC:

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My attention is invited to the order dated 18.3.09. Perusal of the said order reveals that when the appeal was heard learned counsel for the appellants had sought time to ascertain as to what orders are passed on the application moved by the present appellants/plaintiffs before the First Appellate Court for leading additional evidence. Copy of application moved by the appellants before the First Appellate Court and order pased thereon has been placed on record.

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Justice A.M.Khanwilkar in Writ Petition No.4885/08 vide order dated 11.7.08 permitted the present appellants to make an application for leading additional evidence and further observed that in case such an application is moved the First Appellate Court to decide the same uninfluenced by the observations made in the order. Strangely enough the present appellants moved an application before the First Appellate Court by asserting that the High Court has permitted leading of additional evidence and thus tendered on record certain documents and requested the Court to accept the same. It is thus clear that an application moved before the First Appellate Court purportedly under order 41 rule 27 of Code of Civil Procedure was wholly

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misconceived. The First Appellate Court being of the view that no case under Order 41 Rule 27 is made out has rejected the application. No fault can be found with the order passed by the First Appellate Court dated 24.12.08.

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The present appellants are original plaintiffs who had filed suit for partition, separate possession and injunction. The trial Court dismissed the suit and aggrieved thereby appellants filed first appeal before the District Judge. The First appeal also came to be dismissed. Hence the present second appeal has been filed. Before the trial court, with a view to establish the title of the plaintiffs to the property the plaintiffs placed on record inquiry report at Ex.62 purported to have been prepared in exercise of powers under the provisions of Maharashtra Land Revenue (Inquiry Into Title of Land) Rules, 1967. The said report has been considered by both the courts below and has been rejected as falling short of establishing title to the property. It is obvious that the report cannot be the source of title. Both the courts below have concurrently held on facts that the appellants have failed to establish their title to the property. Hence suit has been dismissed. Perused the judgments of the trial court so also the first appellate court and the order dated 24.12.08. No substantial question of law emerges for consideration. No fault can be found in the impugned judgment and decree. Hence second appeal stands dismissed. In view of the disposal of the second appeal civil applications do not survive and the same also stand disposed of.

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6.8.2009.

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1.SHRI Gulam Mohammad Usaman Mulla,Deceased His L.R'S 1/1 Smt. Khatunbibi Gulam Mohammad Mulla v. 1.MOHMUDMIYA Gulamsaheb Mulla,Deceased His L.R'S.Smt. Najama Abdul Wahab Mulla and Ors.

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1.SHRI Gulam Mohammad Usaman Mulla,Deceased His L.R'S 1/1 Smt. Khatunbibi Gulam Mohammad Mulla v. 1.MOHMUDMIYA Gulamsaheb Mulla,Deceased His L.R'S.Smt. Najama Abdul Wahab Mulla and Ors.

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