Devichand Bharat Tambe And Others v. Gajanan Sitaram Shepal And Others

{1} drp

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD WRIT PETITION NO.5226 OF 2017 1.

Devichand Bharat Tambe PETITIONERS Age - 50 years, Occ - Agriculture 2.

Sushila w/o Devichand Tambe Age - 45 years, Occ - Household 3.

Sunil s/o Bharat Tambe Age - 47 years, Occ - Agriculture 4.

Jyoti w/o Sunil Tambe Age - 43 years, Occ - Household 5.

Anil s/o Bharat Tambe Age - 45 years, Occ - Agriculture 6.

Swarna w/o Anil Tambe Age - 40 years, Occ - Household All R/o Dahad (Bk), Taluka - Rahata District - Ahmednagar

VERSUS

1.

Gajanan s/o Sitaram Shepal RESPONDENTS @ Mohiniraj Gangadhar Kulkarni Age - Major, Occ - Agriculture R/o 134, Vasai, "Sabda Brahama Vasai", Vasai, Mumbai 2.

Santosh s/o Vasant Deshpande Age - 47 years, Occ - Agriculture R/o 426, Sadguru Housing Society, Shivaji Nagar, Manmad District - Nashik 3.

Mohiniraj s/o Eknath Kulkarni Age - Major, Occ - Agriculture R/o Shriraj, Bungalow No. 20 Modkeshwar Society,

{2} Indiranagar, Nashik 4.

Nandkumar s/o Vasant Deshpande, Age - Major, Occ - Agriculture R/o B-13, Astavinayak Apartment Ashok Stamb, Behind Dholya Ganpati Temple Nashik 5.

Sanjay Vasant Deshpande Age - Major, Occ - AGriculture R/o 426, Sadguru Housing Society, Shivajinagar, Manmad District - Nashik 6.

Suhas Vasant Deshpande Age - Major Occ - Agriculture R/o Building No. 8, Sankalp Sidhi Plot No. 2, Silver Arch Housing Society Khadakpada, Kalyan (W) District - Thane 7.

Sau. Smita Satish Kulkarni Age - Major, Occ - Household R/o Vanraj Apartment, Halar Road, Near Bank Colony, Balchad (Gujrat) 8.

Sau Sradha Sunl Shankpal Age - Major Occ - Household R/o 2/9, Patel COlony, Bharucha Road, Dahisar (E) Mumbai 9.

Dattatraya Eknath Bedre Age - Major, Occ - Agriculture R/o 3, Sukhkarta Apartment, Kamodnagar, Nashik 10.

Digambar Eknath Bedre Age - Major, Occ - Agriculture R/o D/3, Pradhama Cooperative Society Vijaynagar No.2, Diondori Road (Meri) Nashik

{3} 11.

Shashikala Subhash Monde (DELETED) Age - Major, Occ - Agriculture R/o 2364, Nehru Chowk, Sangamner District - Ahmednagar 12.

Shashi Raman Patil Age - Major, Occ - Household 13.

Suman Subhash Patil Age - Major, Occ - Household 14.

Kishor (Bandu) Raman Patil Age - Major, Occ - Agriculture 15.

Bhagwan s/o Raman Patil Age - Major, Occ - Agriculture Resp Nos. 12 to 15 All R/o Patil Vasti In front of Railway Station, Shirdi, Taluka - Rahata, District - Ahmednagar 16.

Sunanda @ Shakuntala Chandrakant Kulkarni Age - Major, Occ - Household R/o Kolpewadi Sugar Mill Motinagar Colony, Taluka - Kopargaon District - Ahmednagar 17.

Sarla Subhash Kulkarni Age - Major, Occ - Household R/o Patil Garden Road, Row House No. 15 In front of Krishna Temple Indira Nagar, Nashik 18.

Shirish Sitaram Shepal Age - Major, Occ - Agriculture R/o Venkatesh Clinic, S. No. 629/6, Nilesh Complex Bibvewadi, Pune 19.

Mangal Makrand Punde, Age - Major, Occ - Household R/o Bhambora, Taluka - Karjat District - Ahmednagar

{4} 20.

Vasumat @ Varsha Vishwas Kale Age - Major, Occ - Household R/o Lake View Housing Society Paranjpe Bunglow, Suksagar Nagar Katraj, Pune 21.

Swati Pradip Vpradas, Age - Major, Occ - Household R/o Kulkarni Building, Swati Jwelers, Suksagar Nagar Katraj, Pune .......

Mr. Rahul A. Tambe, Advocate for the petitioners Mr. Y. B. Pathan, Advocate for respondents No. 1 to 10, 12 to 21 .......

[CORAM : SUNIL P. DESHMUKH, J.] DATE : 8 th JANUARY, 2019 ORAL JUDGMENT :

1.

Rule. Rule made returnable forthwith and heard finally with consent of learned advocates for the appearing parties. 2.

Learned advocate for the petitioners purports to refer to various factual aspects involved in the matter dating back from 1969 and the events occurring thereafter, based on revenue entries and mutations and subsequent events taking place in 1985 and 1988. He submits that in the circumstances, Regular Civil Suit No. 349 of 2015 filed by respondent No. 2 for declaration, partition and separate possession is not maintainable and an application Exhibit-24 had accordingly been

{5} moved to frame following issues - " 1.

Whether this court has jurisdiction to entertain and try the present suit?

2. Whether the suit of Plaintiff is within limitation?

3. Whether the suit of Plaintiff is maintainable in view of amended provisions of Sec. 6 of Hindu Law (Hindu Succession Act Amendment 2005)?

4. Whether suit is maintainable as non inclusion of all suit property belong to joint family property? "

3.

Learned advocate submits that, however, while deciding application Exhibit-24, trial court has seen the application from the angle of section 9-A of the Civil Procedure Code and has decided the same erroneously. Learned advocate further purports to submit that observations in paragraph No. 5 of the impugned order are inconsequential, since ruling referred to therein has been declared to be not a good law, having regard to decision of the Supreme Court in the case of "Pandurang Dhondi Chougule V/s Maruti Hari Jadhav" [1966 AIR (SC) 153]. He submits that other aspects involved in the application about plaintiff claiming to be coparcerner is also a question of law, has not been addressed to at all. He submits that the application had been moved specifically referring to Order XIV, Rule 2 of the Civil Procedure Code. However, the trial court has framed only one issue with regard to jurisdiction ignoring other relevant issues,

{6} which would be issues of law. He, therefore, requests to allow the writ petition and direct the trial court to frame issues as requested.

4.

On the other hand, Mr. Pathan, learned advocate appearing on behalf of the respondents, vehemently submits that issue of jurisdiction is a preliminary issue would not be a good contention in view of deletion of section 9-A from the Civil Procedure Code under Ordinance issued by State Government in June, 2018. He, therefore, submits that issue of jurisdiction would hardly be considered as preliminary issue, yet the trial court has framed the issue as preliminary issue. He further goes on to submit that issue of limitation is a mixed question of law and facts and requires evidence and, as such, it would not be framed as a preliminary issue and has been rightly so observed by the trial court. He submits that even otherwise, Order XIV, Rule 2 of the Civil Procedure Code also makes reference to that court is expected to pronounce judgment on all the issues. As such, he requests not to indulge into the request made under the writ petition.

5.

Perusal of the impugned order shows that the trial court had been overwhelmingly impressed by Section 9-A of the Civil

{7} Procedure Code and has not made reference to Order XIV of the Civil Procedure Code at all. In the circumstances, so far as contention on behalf of the petitioners about framing of preliminary issue pursuant to Order XIV of the Civil Procedure Code is concerned, same goes un-addressed. There does not appear to be any application of mind to the same. The order in this respect is rendered non speaking.

6.

In the circumstances, it would be expedient that parties get an opportunity to readdress themselves on application Exhibit-24 filed by the petitioners.

7.

Having regard to aforesaid, writ petition is allowed. Impugned order dated 30th October, 2017 passed by Civil Judge Junior Division, Rahata on Exhibit-24 in Regular Civil Suit No. 349 of 2015 is set aside, letting opportunity to the parties to readdress afresh application Exhibit-24. All points are kept open for the parties. Rule is made absolute in aforesaid terms. [SUNIL P. DESHMUKH] JUDGE drp/wp5226-17