Javaruddin Ahmad Mulla Since Deced Saipanulok Jahiruddin Mulla And ORS v. Khatunbi Ibrahim Fullari And ORS
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.468 OF 2009 Javaruddin Ahmad Mulla Since deceased Saipanulok Jahiruddin Mulla and Ors.
... Appellants Vs Khatunbi Ibrahim Fullari and Ors.
... Respondents ...
Mr. I.M.Khairdi for the Appellants.
Mr. Nikhil Dongre i/by Mr. S.S.Kanetkar for the Respondent Nos.1 and 3.
Mr. Somnath R. Thengal for Respondent Nos.4A, 4B, 4D and 4E. CORAM : SANDEEP K. SHINDE J.
DATE : AUGUST 7, 2019 P.C. :
Papers are produced for 'Speaking to the Minutes' of the order dated 9th July, 2019. Inadvertently, the order dated 9th July, 2019 has been passed in Civil Application No.1219 of 2016 in Second Appeal No.468 of 2009. It is brought to the notice that Civil Application No.1219 of 2016 was filed for restoration of appeal Shivgan 1/7
,which was dismissed on 4th May, 2016. Though the application was heard and allowed, inadvertently, order has not been passed. (SANDEEP K. SHINDE, J.) Corrected order reads thus:
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 468 OF 2009 Javaruddin Ahmad Mulla Since deceased through LRs Saipanulok Jahiruddin Mulla ... Appellant Vs Sou.Khatunbi Ibrahim Fullari & Ors.
... Respondents Mr. I.M. Khairdi, Advocate for the Appellant. Mr. S.S. Kanetkar, Advocate for Respondents No. 1 & 3. Mr. Somnath R. Thengal, Advocate for Respondents No. 4A, 4B,4D and 4E.
CORAM : SANDEEP K. SHINDE J.
DATE : July 9 th , 2019 P.C. :
1.
Heard learned counsel for the parties.
Shivgan 2/7
2.
The original defendants no. 4 and 5, in Regular Civil Suit No. 74 of 1990 have preferred this appeal, against the decree passed in Regular Civil Appeal No. 202 of 1998.
3.
Pending suit, as on 11th April, 1990 defendant no. 3 sold, part of the suit property, to the defendant no. 4 who in turn sold it to defendant no. 5 on 22.06.1993. The suit between mother and son for declaration under Section 34 of the Specific Relief Act was instituted in the year 1990; however upon death of motherplaintiff, her estate was represented by her daughter. Eventually, the suit came to be converted as a suit for partition, instead of declaration. 4.
Learned Trial Court declared plaintiffs entitlement to 1/5th share and 2/5th of defendant no. 2 and 3 each, separately out of the suit property. Clause no. 4 and 5 of the operative order of the Learned Trial Court reads as under : "4. The Revenue authority is hereby directed to divide the entire suit property by metes and bounds in such a fashion and out of it 1/5th portion along with its physical possession be allotted to the share of the Shivgan 3/7
plaintiff No. 1A and 2/5th share out of it is to be allotted to the defendant no. 2 out of land gat no. 146/2 subject to description of saledeed dated 22.06.1993 Exh. 79
5. The 2/5th share out of the suit property is to be allotted to the defendant no. 5 instead of his predecessor in title the defendant no. 3 subject to the sale deed dated 11.04.1990".
5.
In view of the operative order at clause nos. 4 and 5, the Trial Court directed to allot share of defendant no. 4 to the defendant no. 5, subject to sale deed dated 11.04.1990.
6.
In the Regular Civil appeal preferred by the defendant no. 4 and 5, Appellate Court vide Judgment dated 09.12.2003 set aside clause nos. 4, 5 and 6 of the operative part of the order passed by the Trial Court. In effect, 2/5th share out of the suit property, which was directed to be allotted to the defendant no. 5 instead of his predecessorintitle has been set aside.
7.
Aggrieved by the Judgment and Decree of the Appellate Court, Shivgan 4/7
this appeal is preferred.
8.
Admit; on the following substantial question of law: (i) Whether Appellate Court is justified in reversing the decree, and in particular clause nos. 4 & 5 of the Judgment of the Trial Court, without first declaring that Sale Deed executed by defendant no. 3 to defendant no. 4 is illegal for want of right or title thereto.
9.
Call for Record and Proceedings from the Trial Court. 10.
Since the suit was instituted in the year 1990, the hearing of the appeal is expedited.
(SANDEEP K. SHINDE, J.) Shivgan 5/7
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1219 OF 2016 IN SECOND APPEAL NO.468 OF 2009 Javaruddin Ahmad Mulla Since deceased Saipanulok Jahiruddin Mulla and Ors.
... Applicants Vs Khatunbi Ibrahim Fullari and Ors.
... Respondents ...
Mr. I.M.Khairdi for the Appellants.
Mr. Nikhil Dongre i/by Mr. S.S.Kanetkar for the Respondent Nos.1 and 3.
Mr. Somnath R. Thengal for Respondent Nos.4A, 4B, 4D and 4E. CORAM : SANDEEP K. SHINDE J.
DATE : JULY 9, 2019 P.C. :
It is an application for restoration of the appeal, which was dismissed in view of the order dated 4th May, 2016. Heard learned counsel for the parties. That for the reasons stated in application, paragraphs 2 and 3 thereof, order dated 4th May, 2016 is recalled and the appeal is restored to the file. Shivgan 6/7
Civil Application No.1219 of 2016 is allowed in the aforesaid terms.
(SANDEEP K. SHINDE, J.) Shivgan 7/7