Research › Search › Judgment

Bombay High Court · body

2016 DIGILAW 1215 (BOM)

Eknath v. Panchashila Dnyandev Kharat

2016-07-18

R.K.DESHPANDE

body2016
JUDGMENT : 1. Admit. Heard finally by consent of the learned counsels appearing for the parties. 2. In Regular Civil Suit No. 3 of 2005, the trial Court passed a decree on 30.06.2008 holding that Nagabai could not have sold 85R of land initially to defendant No.4 and subsequently by defendant no.4 to defendant nos. 5 and 6 on 23.07.2004. The trial Court passed a decree holding that the defendants shall be at liberty to file a suit for partition and separate possession in respect of 60R of land against Panchsheelabai and further decree is passed to direct immediate delivery of possession of the said 85R of the land to the plaintiff. 3. This decree passed by the trial Court was the subject matter of challenge in Regular Civil Appeal No. 85 of 2008. Though the lower appellate Court dismissed the appeal on 01.07.2013, the decree passed by the trial Court is substituted by a modified decree. This decision of the lower Appellate Court rendered on 01.07.2013 is the subject matter of challenge in this appeal by original defendant nos. 1, 2, 3, 5 and 6. 4. The matter was heard for quite some time on last occasion and it is found that the lower appellate Court having dismissed the appeal, could not have modified the decree passed by the trial Court without there being any cross objection, and the decree passed by the trial Court should not have been disturbed. 5. The matter was adjourned so as to enable the learned counsel appearing for the parties to think over it and make a statement accordingly. Both the learned counsels submit after taking instructions from their clients that the decree passed by the trial Court can be restored with liberty as was granted by the trial Court for filing a separate suit for partition and separate possession of 60R of land. 6. In view of above, the second appeal is allowed by setting aside the judgment and order dated 01.07.2013, passed by the lower Appellate Court in Regular Civil Appeal No. 85 of 2008 and the decree passed by the trial Court on 30.06.2008 in Regular Civil Suit No. 3 of 2005 is restored. No order as to costs. This shall, however, be subject to further orders to be passed in the suit to be filed as per the order passed by the trial Court. 7. No order as to costs. This shall, however, be subject to further orders to be passed in the suit to be filed as per the order passed by the trial Court. 7. All the issues in respect of title over the suit property are kept open to be agitated in a suit and none of the observations made by the Courts below can come between the parties. 8. The learned counsel Shri Padhye appearing for the appellant submits that the time may be granted to the appellant to hand over the possession of the suit property to the plaintiff. Hence, within a period of 60 days from today, the possession of the suit property shall be handed over to the parties, failing which the execution of decree shall immediately follow.