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2012 DIGILAW 453 (BOM)

Ismail Mehaboob Shaikh v. Dadaba Shivram Salave

2012-02-29

S.S.SHINDE

body2012
JUDGMENT :- Heard learned Counsel for the parties. Learned Counsel appearing for the appel1ants invited my attention to the grounds taken in the Second Appeal and in particular ground No.3 and submitted that, subject matter of the suit is the property which is purchased by original plaintiff from his brother. The plaintiff and also his brother in their cross-examination have specifical1y stated that they do not know the area which has fal1en in their share in the partition. It is further submitted that the dispute between the plaintiff and the defendants was in respect of same property in both the suits. It is further submitted that the suit filed by the appellants herein and the suit filed by the respondent should have been tried together by the Trial Court. It is further submitted that the Trial Court should have ordered joint measurement of the suit property, under Order 26 Rule 10 of the C.P.C. Therefore, relying upon the ground taken in the Second Appeal, the evidence of cross-examination of original plaintiff and his vendor, learned Counsel appearing for the appellants would submit that the Trial Court should not have passed the decree in favour of the plaintiff, when the plaintiff and his brother are not aware about the exact area, which is sold and purchased by the plaintiff. Therefore, this Second Appeal deserves consideration. 2. On the other hand, learned Counsel appearing for original plaintiff relying upon reasons recorded by the Courts below and in particular paras 9, 10 and 11 from the judgment of the Trial Court would submit that the Trial Court has meticulously examined all the aspects of the matter and the evidence of each witness has been gone into. In written statement is admitted that the plaintiff is owner of the suit property. Once such admission is given in the written statement, there is no question of entertaining the Second Appeal. It is further submitted that the evidence of the plaintiff has been corroborated by the City Survey Record at Exh.54. Therefore, according to learned Counsel appearing for the plaintiff, there are concurrent findings recorded by the Courts below. Therefore, this Court may not interfere in the Second appeal, since these findings are not perverse and are in consonance with the evidence brought .on record by the parties. 3. I have givel1 due consideration to the rival submissions. Therefore, according to learned Counsel appearing for the plaintiff, there are concurrent findings recorded by the Courts below. Therefore, this Court may not interfere in the Second appeal, since these findings are not perverse and are in consonance with the evidence brought .on record by the parties. 3. I have givel1 due consideration to the rival submissions. Upon hearing learned Counsel for the parties, I do not see sound reason to accept the contention of the appellants that both the suits should have been tried together. However, I find considerable force in the argument of learned Counsel appearing for the appellants that if the suit property is purchased by the plaintiff from his brother and the brother has received same property in family partition, the brother and the plaintiff should be well aware about said area of the said property. When the plaintiff and his brother were confronted with this query before the Trial Court that, how much area is purchased by the plaintiff from his brother, both of them have stated that they are not aware about the area which is sold and received in the partition. In my opinion, the Trial Court should have examined this aspect and after satisfying itself about the area purchased by the plaintiff from the vendor his brother, then should have proceeded to decide the suit. Therefore, this Second Appeal raises following substantial questions of law :- (i) Whether the findings recorded by the Trial Court that the ownership of the plaintiff is admitted by original defendant i.e. appellants herein is contrary to the record? (ii) In absence of specific area on record of sale transaction between the plaintiff and his brother, whether the Trial Court should have proceeded to pass order of injunction? 4. Admit, on the aforesaid substantial questions of law. Learned Counsel appearing for the respondent waives service of notice. 5. Learned Counsels appearing for the parties submit that this Court can dispose of this matter with direction to the Trial Court to retry the suit and decide the matter afresh. Therefore, Second Appeal is taken up for final hearing. 6. 4. Admit, on the aforesaid substantial questions of law. Learned Counsel appearing for the respondent waives service of notice. 5. Learned Counsels appearing for the parties submit that this Court can dispose of this matter with direction to the Trial Court to retry the suit and decide the matter afresh. Therefore, Second Appeal is taken up for final hearing. 6. As already observed and upon perusal of the original record, in particular, cross-examination of the plaintiff and also his brother from whom he has purchased the property, there is no discussion or no any finding recorded by the Trial Court about exact area received by the vendor in partition and in turn how much area he sold to the original plaintiff by way of sale-deed. The Trial Court, merely relying upon the recitals of the sale-deed and Exh.54-city survey record, proceeded to hold that the plaintiff is owner of the suit property and granted injunction against original defendant/respondent. In my considered opinion, it was incumbent upon the Trial Court to find out the area which is sold by the brother of the plaintiff to him in partition and further real1y said brother has received said area mentioned in the sale-deed. In absence of this exercise the Trial Court was not correct in proceeding further and allowing the suit. On this point alone, interference is warranted in the judgment of the Trial Court and the first Appellate Court. 7. Therefore, the judgment and order passed by the Trial Court and also the First appellate Court is set a8ide. Regular Civil Suit No. 138 of 2001 is restored to its original file. Civil Judge, Junior Division, Pathardi, is directed to hear Regular Civil Suit No. 138 of 2001 afresh after giving proper opportunity to the parties and after recording findings upon aforesaid point and then proceed to decide the suit finally. Since the parties are litigating for considerable period, it is desirable that the Trial Court should dispose of Regular Civil Suit No. 138 of 2001, as expeditious1y as possible, preferably, within four months from today. All contentions on merits are left open. The Second Appeal is allowed to above extent. Same stands disposed of. Consequently, the Civil Application stands disposed of. Appeal dismissed.