Applicant sought recall of a 2023 order that recalled expediting directions in his second appeal after the court found the suit collusive. The court noted his refusal of an offer of market price plus additional compensation for his 1/9th share, found no case made out for recall, and dismissed the application.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
14-IA-6505-2024.doc
Arjun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION NO.6505 OF 2024 IN
SECOND APPEAL NO.255 OF 2019
| Sanjay Bhau Mane | …Applicant |
|---|---|
| IN THE MATTER BETWEEN : |
|
| Maruti Dikappa Kurne Versus |
…Appellant |
| Sanjay Bhau Mane & Ors. __________________________________ |
…Respondents ____________________________ |
Mr. Rahul R. Tiwari, for the Applicant in IA/6505/2024. Mr. Manoj A. Patil, for the Appellant in SA/255/2019.
CORAM: MADHAV J. JAMDAR, J. DATED: 05 DECEMBER 2024
P.C.:
1. The Interim Application has been filed seeking relief that the Order dated 4th July 2023 passed by this Court in Second Appeal No.255 of 2019 along with Civil Application No.281 of 2018 be recalled. The said Order reads as under:-
“ 1. The Second Appeal No.255 of 2019 is admitted by order dated 3rd October 2018. Civil Application No.1298 of 2019 was filed for expediting the hearing of the Second Appeal and a learned Single Judge by order dated 4th November 2019 expedited the hearing of the Second Appeal
1
14-IA-6505-2024.doc
and the Appeal was directed to come up for hearing on 28th November 2019. Thereafter, on 28th November 2019, the matter was adjourned by the learned Single Judge due to paucity of time. On 24th August 2022, a learned Single Judge kept the matter on 21st September 2022 under the caption for Directions. Thereafter, again Interim Application No.16992 of 2022 has been taken up for expediting the hearing of the matter for the reason that the Respondent No.1 is serving in Army and he is going to retire in the near future. Accordingly, Second Appeal was kept on 17th November 2022 for final hearing.
2
14-IA-6505-2024.doc
the same was adjourned to 4th July 2023.
3
14-IA-6505-2024.doc
Tuka (Died)
Bhau (Died) Shuibai Rama Hariba Mahaling
(D 2) (D.3 wife of D2)
Ashok Narayan Gautam Sanjay Vishranta Mangal Sangita
(D.8) (D.9) (D.7) (Plaintiff) (D.6) (D.5) (D.4)
The said sale deed was executed by the father of the present Respondent No.1 – Bhau as well as three sons.
4
14-IA-6505-2024.doc
executed registered sale-deed dated 10th July 1996 in favour of the present Appellant. Said Sachin Ashok Mane @ Kurne who is present in Court tenders photocopy of his Aadhar Card which is taken on record and marked ‘X’ for identification. Said Ashok has sold his share in the suit property. Therefore, in fact, on 20th June 2023 after hearing the learned Advocate of the Appellant this Court has expressed that the suit appears to be collusive. However, as the Respondent No.1 is serving in Army and just to ensure that he has been paid market price of his 1/9th share, a suggestion was given to both the parties that the Appellant can purchase 1/9th share of the Respondent No.1 – Sanjay Mane at the present market price and when the Appellant has expressed willingness to purchase the said share at the present market price, at that stage, a request was made by Advocate Mr. Rahul Tiwari seeking permission to file vakalatnama and grant adjournment.
(Emphasis added)
2. The factual position set out in the above Order makes it very clear that the present proceedings being prosecuted on behalf of the Applicant i.e. Respondent No.1 by the persons who have already sold the land to the Appellant in Second Appeal No.255 of 2019.
3. On the earlier dates, the Applicant – Sanjay Bhau Mane was
5
14-IA-6505-2024.doc
personally present in Court. He again submitted that he is serving in Army and going to retire shortly. In view of the said submission of the Respondent No.1, Mr. Manoj Patil, learned Counsel for the Appellant in Second Appeal No.255 of 2019 has been requested to take instructions from the Appellant whether the Appellant is ready and willing to pay market price of 1/9th share of the Applicant – Sanjay Bhau Mane and some additional compensation. As the Applicant is serving in Army, Mr. Manoj Patil, learned Counsel for the Appellant, on instructions, states that the Appellant is ready and willing to pay present market price of 1/9th share of the Respondent No.1 as recorded in the Order dated 4th July 2023 as well as additional compensation.
4. However, Mr. Rahul Tiwari, learned Counsel for the Applicant states that his instructions are not to accept the said proposal and the Applicant is interested only in 1/9th share of the land. Mr. Manoj Patil, learned Counsel for the Appellant submits that apart from the contentions which are raised in Second Appeal, the suit land is only 96 R and approximately 1/9th share of the Applicant will come to 10.66 R. He submits that standard area of the land as per the the Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (“ said Act ”) is 20 R for Jirayat land and as per Sections 3 and 4 of the said Act, land admeasuring less than 20 R will be fragment and therefore there is prohibition of actual partitioning the land. He submits
6
14-IA-6505-2024.doc
that even if the Second Appeal is dismissed and 1/9th share is granted to the Applicant, then also the land cannot be partitioned as the same will be hit by the provisions of the Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act, 1947. Inspite of this position, Mr. Rahul Tiwari, learned Counsel for the Applicant / Respondent No.1 states that he has instructions only to pray for partition of 1/9th share of the land.
5. Thus, the conduct of the Applicant in refusing to accept the present market rate of said 1/9th share as well as some additional compensation further substantiates what is stated in Order dated 4th July 2023. Accordingly, no case is made out for recall of the Order dated 4th July 2023.
6. The Interim Application is dismissed, however, with no Order as to costs.
[MADHAV J. JAMDAR, J.]
7
2 issues framed by the court
Should the order dated 4 July 2023 in Second Appeal No.255 of 2019 recalling expeditious-hearing directions be recalled?
Is the Applicant entitled to out-of-turn hearing of the Second Appeal given the alleged collusive conduct?
2 provisions across 1 enactments
Sanjay Bhau Mane
Maruti Dikappa Kurne
Sanjay Bhau Mane & Ors.
Madhav J. Jamdar
As recorded by the court registry
10 orders share this CNR
Judgements on the same questions, provisions and authorities, from every court
