Second appeal challenging decrees granting injunction for 1/3rd share in ancestral well. Appellants claimed exclusive ownership but admitted in written statement plaintiff had 1/3rd share. Court dismissed appeal for lack of substantial question of law.
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12.677.24 sa.docx
Iresh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 677 OF 2024 WITH INTERIM APPLICATION NO. 14288 OF 2024 IN
SECOND APPEAL NO. 677 OF 2024
Vimalbai Ramchandra Ware and Ors
.....Appellants
Vs.
Maruti Parbat Ware and anr
.....Respondents
Mr. Anukul Seth i/b Mr. Hitesh Shah for the appellants
IRESH MASHAL
CORAM : GAURI GODSE, J.
DATE : 13th NOVEMBER 2024
Digitally signed by IRESH MASHAL Date: 2024.11.18 10:43:38 +0530
ORDER:
1. Heard learned counsel for the appellants. This second appeal is
preferred by defendant nos. 1, 2, 4 and 5 challenging the concurrent judgments and decrees granting a decree for injunction restraining these defendants from obstructing the plaintiff from receiving his 1/3rd share in the ancestral well situated in the area allotted to defendant
no. 3.
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12.677.24 sa.docx
exclusive property of defendant no. 3 and he has sold it to the present appellants. He submits that though the document was not produced in the trial Court, an application was filed before the first Appellate Court under Order XLI Rule 27 of Code of Civil Procedure, 1908 (‘CPC’) for producing the document by way of additional evidence. He submits that the first Appellate Court has erroneously dismissed the application on the ground that the appellants failed to make out a case that why they were unable to produce it in the trial Court. He submits that the document of the sale deed in favour of the appellants would indicate that the appellants have exclusive right over the suit well and the plaintiff is not entitled to seek any injunction against these appellants. He submits that the second appeal raises substantial questions of law on incorrect appreciation of evidence on record and erroneously rejecting the appellants’ application to adduce additional evidence.
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12.677.24 sa.docx
to object grant of injunction is claimed by claiming exclusive ownership over the suit well. However, in the written statement, the appellants have not pleaded that defendant no. 3, through whom they claim exclusive ownership had any exclusive right over the suit well. Admittedly in the partition the plaintiff was granted 1/3rd share in the use of water in the well. Thus, both the Courts have concurrently held that the plaintiff is entitled to his 1/3rd share of water in the suit well.
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12.677.24 sa.docx
Once it is admitted that defendant no. 3 had no exclusive right in the suit well, the production of the document would be redundant. Hence, the question of law raised on adducing additional evidence would not require any consideration by this Court.
law. Hence, the second appeal is dismissed.
14288 of 2024 is disposed of as infructuous.
[GAURI GODSE, J.]
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2 issues framed by the court
Whether the second appeal raises a substantial question of law warranting interference with concurrent findings of fact?
Whether the lower appellate court erred in rejecting the application for additional evidence under Order XLI Rule 27 CPC?
1 provisions across 1 enactments
Vimalbai Ramchandra Ware and Ors
Maruti Parbat Ware and anr
GAURI GODSE
As recorded by the court registry
3 orders share this CNR
Judgements on the same questions, provisions and authorities, from every court
