Partly allowed

Ganesh Madhukar Shsha and Another v. Rohidas Chandar Thite and Others

Bombay HC27 Nov 2014SA/485/2013

Case brief

AI extract

What is this about?

The High Court allowed the withdrawal of three second appeals concerning partition, property declarations, and injunctions. The court extended an existing interim order for eight weeks while parties initiate proceedings to challenge revenue authority decisions or apply under Section 47 CrPC, reserving all merits.

What did the court decide?

Appeals allowed to be withdrawn; interim order extended for eight weeks pending related applications.

Ganesh Madhukar Shsha and Another Vs Rohidas Chandar Thite and Others — Partition | Bombay HC (2014)

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Second Appeal No.484/2013 with Second Appeal No.485/2013 with SecondAppeal (St.) No.4268/2013

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD

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SECOND APPEAL NO.484 OF 2013

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Ganesh s/o Madhukar Shaha and another

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... APPELLANTS

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VERSUS

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The State of Maharashtra and others ... RESPONDENTS

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Shri V.S. Bedre, Advocate for appellants

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Shri S.P. Daund, A.G.P. for respondent Nos.1 to 3/ State Shri S.V. Jaigude, Advocate for respondent Nos.4 & 5 Shri V.S. Badakh, Advocate for respondent No.9

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W I T H

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SECOND APPEAL NO.485 OF 2013

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Ganesh s/o Madhukar Shaha and another

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... APPELLANTS

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VERSUS

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Rohidas s/o Chandar Thite and others ... RESPONDENTS

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Shri V.S. Bedre, Advocate for appellants Shri S.V. Jaigude, Advocate for respondent Nos.1 & 2 Shri V.S. Badakh, Advocate for respondent No.9

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W I T H

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Second Appeal No.484/2013 with Second Appeal No.485/2013 with SecondAppeal (St.) No.4268/2013

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SECOND APPEAL (STAMP) NO.4268 OF 2013 WITH CIVIL APPLICATION NO.10424 OF 2013

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Bhau s/o Lahanu Thite and others

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... APPELLANTS

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VERSUS

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Rohidas s/o Chandar Thite and others ... RESPONDENTS

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Shri V.S. Badakh, Advocate for appellants Shri S.V. Jaigude, advocate for respondent No.1 Shri V.S. Bedre, Advocate for respondent Nos.5 & 6

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CORAM: R.G. KETKAR, J.

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DATED: 27th November, 2014.

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ORAL ORDER :

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Heard Mr. V.S. Bedre, learned counsel for appellants, Mr. S.P. Daund, learned A.G.P. for respondent Nos.1 to 3 and Mr. S.V. Jaigude, learned counsel for respondent Nos.4 and 5 and Mr. V.S. Badakh, learned counsel for respondent No.9 in Second Appeal No.484/2013; Mr. V.S. Bedre, learned counsel for appellants, Mr. S.V. Jaigude, learned counsel for respondent Nos.1 and 2 in Second Appeal No.485/2013; Mr. V.S. Badakh,

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learned counsel for appellants, Mr. S.V. Jaigude, learned counsel for respondent Nos.1 and 2 and Mr. V.S. Bedre, learned counsel

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Second Appeal No.484/2013 with Second Appeal No.485/2013 with SecondAppeal (St.) No.4268/2013

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for respondent Nos.5 and 6 in Second Appeal (Stamp) No.4268/2013, at length.

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Second Appeal Nos.484/2013 is preferred by original plaintiffs challenging the judgment and decree dated 4.7.2006, passed by the learned Civil Judge, Senior Division, Ahmednagar in Regular Civil Suit No.45/2004 as also the judgment and decree dated 7.11.2012, passed by the learned Principal District Judge, Ahmednagar in Regular Civil Appeal No.271/2006. By these orders, the courts below dismissed the suit instituted by the appellants – plaintiffs for declaration that the sale deed dated 6.11.1998 in respect of land bearing Survey No.417/1, admeasuring 80 R, situate at village Kamargaon, Taluka and District Ahmednagar (for short 'suit land') is binding on defendants No.4 to 9 therein, and also for declaration that the chart prepared for partition for the suit land by defendant No.2 – D.I.L.R., Ahmednagar is contrary and incorrect with the decree passed in Regular Civil Suit No.545/1997.

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Second Appeal No.485/2013 is preferred by original plaintiffs challenging the judgment and decree dated 4.7.2006, passed by learned Civil Judge, Senior Division, Ahmednagar in Regular Civil Suit No.553/2003 as also the judgment and decree dated 7.11.2012, passed by the learned Principal District Judge,

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Second Appeal No.484/2013 with Second Appeal No.485/2013 with SecondAppeal (St.) No.4268/2013

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Ahmednagar in Regular Civil Appeal No.272/2006. By these orders, the courts below dismissed the suit instituted by the appellants – plaintiffs for declaration that the decree passed in Regular Civil Suit No.545/1997, dated 18.10.2000 is not binding on them; for injunction restraining the defendants therein from obstructing and interfering in the peaceful possession of the plaintiffs over the suit land.

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Second Appeal (Stamp) No.4268/2013 is preferred by original plaintiffs challenging the judgment and decree dated 4.7.2006, passed by the learned Civil Judge, Senior Division, Ahmednagar in Regular Civil Suit No.113/2004 as also the judgment and decree dated 7.11.2012, passed by the learned Principal District Judge, Ahmednagar in Regular Civil Appeal No.274/2006. By these orders, the courts below dismissed the suit instituted by the appellants – plaintiffs for declaration that the decree passed in Regular Civil Suit No.545/1997 on 18.10.2000 is not binding on them; for declaration that the plaintiffs are owners of the lands except the suit land. The plaintiffs also claimed possession of those properties which were handed over to defendants No.1 and 2 in Regular Darkhast No.122/2001.

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Second Appeal No.484/2013 with Second Appeal No.485/2013 with SecondAppeal (St.) No.4268/2013

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All the appeals were tagged together and were heard from time to time.

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Appellants in Second Appeals No.484/2013 and No.485/2013 will hereinafter be referred as Ganesh and Shobha. Respondents No.4 and 5 in Second Appeal No.484/2013 and respondents No.1 and 2 in Second Appeal No.485/2013 Rohidas Chandar Thite and Smt. Chhabubai w/o Chandar Thite will be referred as Rohidas and Chhabubai. Appellants in Second Appeal Stamp No.4268/2013 Bhau Lahanu Thite, Eknath Bhau Thite and Tukaram Bhau Thite shall hereinafter referred to as Bhau, Eknath and Tukaram for the sake of brevity.

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On behalf of Ganesh and Shobha, Mr. Bedre submitted that Rohidas and Chhabubai instituted Regular Civil Suit No.545/1997 against defendants No.1 to 6 : (1) Chandar, (2) Bhau, (3) Eknath, (4) Tukaram, (5) Ramdas and (6) Raghu for partition and separate possession. Defendants No.1 to 4 therein appeared. They did not file written statement and the suit proceeded without written statement. By judgment and decree dated 18.10.2000, the learned trial Judge decreed the suit. It was held that, Rohidas and Chhabubai and defendants No.1 to 4, each has 1/6^th share in the suit property. The learned

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Second Appeal No.484/2013 with Second Appeal No.485/2013 with SecondAppeal (St.) No.4268/2013

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trial Judge issued directions for effecting partition. He submitted that, on 6.11.1998, Bhau executed sale deed in favour of Ganesh and Shobha and since then they are in possession of the suit land. He submitted that, Ganesh and Shobha were not made party in Regular Civil Suit No.545/1997. The decree passed is, therefore, not binding on them. Defendants No.1 to 4 in that suit preferred substantive First Appeal challenging the decree dated 18.10.2000. Since there was delay in filing the appeal, they preferred Misc. Application No.4/2002 for condonation of delay. By order dated 8.9.2003, the learned District Judge dismissed the application. Resultantly, the substantive First Appeal preferred by defendants No.1 to 4 challenging the decision in Regular Civil Suit No.545/1997 stood dismissed. Aggrieved by order dated 8.9.2003, Writ Petition No.4570/2001 was preferred. By order dated 11.11.2003, this Court dismissed the petition. The said decision has attained finality.

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Mr. Bedre submitted that Ganesh and Shobha, therefore, instituted Regular Civil Suit No.45/2004 for declaration that sale deed dated 6.11.1998 in respect of the suit land is legal and valid and binding on Rohidas, Chhabubai, Chandar, Bhau, Eknath and Tukaram (defendants No.3 to 9 therein). Ganesh and Shobha also instituted Regular Civil Suit No.553/2003

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Second Appeal No.484/2013 with Second Appeal No.485/2013 with SecondAppeal (St.) No.4268/2013

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against (1) Rohidas, (2) Chhabubai, (3) Chandar, (4) Bhau, (5) Eknath, (6) Tukaram and (7) Ramdas for declaration that the decree passed in Regular Civil Suit No.545/1997 on 18.10.2000 is not binding on them and for perpetual injunction restraining the defendants therein from obstructing and interfering in the peaceful possession of Ganesh and Shobha.

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By judgment and decrees dated 4.7.2006, the learned trial Judge dismissed Regular Civil Suit No.45/2004 and Regular Civil Suit No.553/2003. Aggrieved by that decision, Ganesh and Shobha preferred Regular Civil Appeal No.271/2006 and Regular Civil Appeal No.272/2006. Those appeals were dismissed on 7.11.2012. While dismissing Regular Civil Suit No.45/2004, the learned trial Judge held that suit is not tenable; that Ganesh and Shobha are not owners of the suit land. While dismissing Regular Civil Suit No.553/2003, the learned trial Judge held that Ganesh and Shobha failed to prove that they are owners and possessors of the suit land; that they failed to prove that Rohidas and Chhabubai obtained decree in Regular Civil Suit No.545/1997 by playing fraud on the Court and hence it is void and not binding on them. The learned trial Judge held that, they failed to establish that Rohidas and Chhabubai are obstructing their peaceful possession and ownership. The learned trial Judge

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Second Appeal No.484/2013 with Second Appeal No.485/2013 with SecondAppeal (St.) No.4268/2013

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also held that, Ganesh and Shobha are not entitled to relief of declaration as sought for. Regular Civil Appeal No.271/2006 arising out of Regular Civil Suit No.45/2004 was dismissed by the learned District Judge by holding that suit is not maintainable; that Ganesh and Shobha failed to prove their ownership. As far as Regular Civil Appeal No.272/2006 arising out of Regular Civil Suit No.553/2003 is concerned, the learned District Judge held that Ganesh and Shobha failed to prove that they are owners and possessors of the suit land; that they failed to establish that Rohidas and Chhabubai obtained the decree in Regular Civil Suit No.545/1997 by playing fraud on the Court and hence it is void and not binding on them; that they failed to prove that Rohidas and Chhabubai are obstructing their peaceful possession and ownership over the suit land.

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Mr. Badakh appearing for appellants in Second Appeal Stamp No.4268/2013 submitted that Bhau, Eknath, Tukaram instituted Regular Civil Suit No.113/2004 for declaration that decree passed in Regular Civil Suit No.545/1997 is not binding on them and that they are owners of the lands except suit land. They also claimed possession of the suit properties which was handed over to Rohidas and Chhabubai in Regular Darkhast No.122/2001. The suit was dismissed by the trial Court. The

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Second Appeal No.484/2013 with Second Appeal No.485/2013 with SecondAppeal (St.) No.4268/2013

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said decree was confirmed by the appellate Court. In para 16, the appellate Court observed that the decree passed in Regular Civil Suit No.545/1997 was unsuccessfully challenged up to High Court.

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On the other hand, Mr. Jaigude submitted that, Ganesh and Shobha purchased the suit land during the pendency of Regular Civil Suit No.545/1997 and, therefore, the said transaction is hit by principles of lis pendens. Ganesh and Shobha are not claiming any independent right on the basis of sale deed dated 6.11.1998 executed by Bhau. Bhau and others unsuccessfully challenged the decree passed in Regular Civil Suit No.545/1997 up to this Court.

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Mr. Jaigude further submitted that, in pursuance of the decree passed in Regular Civil Suit No.545/1997, Rohidas and Chhabubai took out Regular Darkhast No.122/2001. Ganesh and Shobha have raised objections. The said objections are pending consideration before the Executing Court. The plaintiffs also filed objections before the revenue authorities and the same were overruled. Instead of waiting decision in their objections before the Executing Court, Ganesh and Shobha have instituted suit. The courts below, therefore, were justified in holding that

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Second Appeal No.484/2013 with Second Appeal No.485/2013 with SecondAppeal (St.) No.4268/2013

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their suit is not maintainable.

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After arguing the appeals for some time, Mr. Bedre and Mr. Badakh seek permission to withdraw the Second Appeals with a liberty to challenge the decisions of the revenue authorities as reflected in para 6 of the District Court's judgment before appropriate forum. They further submit that they will take out appropriate proceedings under Section 47 of the Cr.P.C., if the said proceedings are already not initiated and if so advised. It was further submitted that, interim order is operating in these appeals from 31.7.2013 and same may be continued for a reasonable period. They assure that within four weeks from today they will take out appropriate proceedings either challenging the decision of revenue authorities and/or appropriate proceedings under Section 47, if not already filed and will also apply for appropriate reliefs therein.

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Mr. Jaigude submitted that, if such liberty is granted, all the contentions of Rohidas and Chhabubai may be expressly kept open.

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In view thereof, the appeals are disposed of in the following terms : -

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Second Appeal No.484/2013 with Second Appeal No.485/2013 with SecondAppeal (St.) No.4268/2013

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(i) Second Appeal Nos.484/2013, 485/2013 and Second Appeal Stamp No.4268/2013 are allowed to be withdrawn with a liberty to take out appropriate proceedings challenging the decision of the revenue authorities and/or taking out proceedings under Section 47 of the Code of Civil Procedure, if not already taken out and if so advised along with application for interim reliefs. Let those proceedings be filed within four weeks from today. The appellants will press for interim reliefs. If such proceedings are taken out, all the contentions of defendants No.1 and 2 are expressly kept open.

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(ii) Having regard to the fact that, interim order is operating from 31.7.2013, notwithstanding withdrawal of the appeals, the said order will remain in force for a period of eight weeks from today and shall stand automatically dissolved after eight weeks without further reference to the Court.

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(iii) Appellants will apply for appropriate interim reliefs. It

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is expressly made clear that, by continuing interim order dated 31.7.2013 for a period of eight weeks from today, this Court has not expressed any opinion

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Second Appeal No.484/2013 with Second Appeal No.485/2013 with SecondAppeal (St.) No.4268/2013

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on merits either way. The concerned Court will pass appropriate order on the application for interim relief on its own merits and on the basis of material on record and in accordance with law.

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(iv) In view of above, Civil Application No.10424/2013 in Second Appeal Stamp No.4268/2013 does not survive and the same is disposed of.

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Order accordingly.

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fmp/sa484.13

Ganesh Madhukar Shsha and Another v. Rohidas Chandar Thite and Others

Case brief

What is this about?

What did the court decide?

Ganesh Madhukar Shsha and Another v. Rohidas Chandar Thite and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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