Satish Dnyaneshwar Kale And Others v. Chabutai Bhimrao Bhoyar (Now Dead) Thr. Lrs. Bhimrao Rangraoji Bhuyar And Others

sa674of2017.odt 1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR SECOND APPEAL 674 OF 2017 (Satish Dnyaneshwar Kale and ors..vs.. Chabutai Bhimrao Bhoyar thr LRs & ors) --------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders.

and Registrar's Orders.

--------------------------------------------------------------------------------------------------------------------------------- Ms. D.V. Sapkal, counsel for the appellants.

Mr. S.M. Vaishnav, counsel for respondents 1(ii) to (vi) & 2. CORAM: ROHIT B. DEO, J.

DATE: 26 th APRIL, 2019.

The following substantial question arises:

"Whether the failure of the plaintiffs to implead Mamta Pramod Bhoyar, who admittedly was the wife and class-I legal heir of Pramod, renders suit for partition and separate possession not maintainable?"

Concededly, Smt. Mamta Pramod Bhoyar was not a party to the suit brought for partition and separate possession.

The dispute is settled as regards respondent 2 - Ms. Monali. She has relinquished her share in consideration of receipt of Rs. 4 lacs. This is recorded in the order dated 15.4.2019.

sa674of2017.odt 2 In view of the compromise praecipe which is signed by the appellants and respondent 2 - Ms. Monali, the compromise is recorded and it is declared that Ms. Monali shall have no claim against the present appellants as regards the property mentioned in the compromise praecipe. In so far as the substantial question of law formulated, it is fairly conceded by Mr. S.M. Vaishnav that Smt. Mamta was a necessary party to the suit of partition. Mr. Vaishnav states on instructions, that the judgments impugned may be set aside and the matter be remitted to the trial Court with liberty to the plaintiffs to implead Smt. Mamta Bhoyar as party defendant.

The judgments impugned are set aside and the matter is remitted to the trial Court. The plaintiffs shall implead Smt. Mamta Pramod Bhoyar as party defendant and the suit shall be decided afresh.

The trial Court is expected to decide the Regular Civil Suit 48 of 2004 as expeditiously as possible and in any event within one year.

JUDGE rsb