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2019 Supreme(Bom) 264
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SANDEEP K SHINDE, J.
BALASO KRISHNA GHADGE - Appellant
Versus
MARUTI JOTI PAWAR - Respondent
Second Appeal No. 377 of 2018; Civil Application No. 894 of 2018
Decided on : 13-02-2019
Advocate Appeared:
Dilip Bodake, Adv.
Headnote:
Condo nation of delay - Possession of share - It may be stated that appellant no.7 herein was not party to suit - She had applied to learned District Judge in Regular Civil Appeal to impaled herself as a party respondent therein vide application - This appellant has purchased part of suit property vide registered sale-deed from defendant no.2 pending suit - It may also be stated that appellants no.1 to 6 were not party defendants when suit was instituted but imp leaded and summons were issued - Appellants avoided service of summons - Be that as it may in April appellants no.1, 2 and 3 appeared in suit and sought time to file written statement - Rojnama further shows that written statement was filed only by appellant no.2 - Rojnama shows that though appellants no.3, 4 and 6 were served suit proceeded ex-parte against them - It may also be stated that appellants no.1 to 6 did not lead evidence - Except appellants no.2 and 5 others did not even file written statement - Admittedly all appellants had purchased part of suit land when suit for partition was pending - Court have gone through judgment of trial Court wherein there is a reference to written statement of defendant no.17 wherefrom it appears that defendant no.17 contended that he had purchased suit land after due enquiry and prayed for the cost for incorrectly imp leading him in suit - Defendant no.20 had filed a written statement and submitted that his name was also mutated in record of rights on basis of sale-deed and asked for compensatory cost for imp leading him as party defendant unnecessarily – Held, It may be stated that merely because undivided share is purchased from member of joint family purchaser does not step in shoes of member of family for all purposes - He has right to file a separate suit for partition against members of family - In suit for partition all defendants are plaintiffs because each of them receive share in partition – However this privilege or advantage cannot be extended to third party purchaser in so far as their right to file suit for partition and possession of their share is concerned - Third Party Purchasers cannot claim that because co-owner has filed an appeal they were not required to pursue their remedy - It is for this reason appellant cannot contend that they had not preferred Regular Civil Appeal against decree of trial Court because in suit for partition all defendants are plaintiffs - In court view taking into consideration conduct of appellants to keep themselves away from suit and appeal proceedings it cannot be said that they were unaware of withdrawal of Appeal filed by respondents no.1 and 2 herein - That even otherwise purchasers of undivided share in joint family property have a right to file suit for partition – In fact appellants herein had purchased part of suit land during pendency of suit - They did not lead any evidence - They are all living in the same where land is situate - It is not their case that they were living in some other State or District - A fact cannot be ignored that though these appellants are living in same they were served by paper publication in appeal proceedings - All these facts if taken together leads me to draw inference that appellants are interested in prolonging litigation - That even otherwise cause shown by them is not sufficient on backdrop of facts aforesaid to condone delay - In view of facts aforesaid Appeal does not give rise to any substantial question of law - Appeal is accordingly dismissed
SANDEEP K. SHINDE, J.
1. Appellants, were the defendants no.15, 17, 18, 19, 20 and 21 in the Regular Civil Suit No. 332 of 1981 filed by the respondents no.1 and 2 who were the plaintiffs in the suit for partition, which was filed on 9th December, 1981.
2. Pending partition suit;
(a) appellant no.1 (defendant no.15) purchased part of the suit land from defendant no.3 vide sale-deed dated 19th April, 1987,
(b) appellant no.2 (defendant no.17) purchased part of the suit land from defendant no.8 vide sale-deed dated 20th February, 1989.
(c) appellant no.3 (defendant no.18) purchased part of the suit land from defendant no.8 vide sale-deed dated 20th February, 1989;
(d) appellant no.4 (defendant no.19) purchased part of the suit land from defendant no.8 vide sale-deed dated 20th February, 1989;
(e) appellant no.5 (defendant no.20) purchased part of the suit land from defendant no.7 vide sale-deed dated 20th February, 1990.
(f) appellant no.6 (defendant no.21) purchased part of the suit land from defendant no.11 vide sale-deed 25th February, 1990.
3. It may be stated that appellant no.7 herein was not party to the suit. She had applied to the learned District Judge in Regular Civil Appeal No. 142 of 2010 to implead herself as a party respondent therein vide application No.3 of 2007. This appellant has purchased part of the suit property vide registered sale-deed dated 26th July, 2001 from defendant no.2 i.e. pending suit.
4. It may also be stated that, appellants no.1 to 6 were not party defendants when the suit was instituted, but impleaded and summons were issued on 14th July, 1993. Rojnama shows, appellants avoided the service of summons. Be that as it may, in April, 1994, appellants no.1, 2 and 3 appeared in the suit and sought time to file the written statement. The rojnama further shows that, written statement was filed only by the appellant no.2 (defendant no.17). The rojnama shows that, though appellants no.3, 4 and 6 were served, the suit proceeded ex-parte against them. It may also be stated that, appellants no.1 to 6 did not lead evidence. Except appellants no.2 and 5, others did not even file the written statement. Admittedly, all the appellants had purchased part of the suit land when suit for partition was pending.
5. I have gone through the judgment of the trial Court wherein there is a reference to the written statement of defendant no.17 (appellant no.2 herein) wherefrom it appears that defendant no.17 contended that he had purchased the suit land after due enquiry and prayed for the cost of Rs. 2,000/- for incorrectly impleading him in the suit. Defendant no.20 (appellant no.5 herein) had filed a written statement and submitted that his name was also mutated in the record of rights, on the basis of the sale-deed dated 20th February, 1990 and asked for the compensatory cost of Rs. 3,000/- for impleading him as party defendant unnecessarily.
6. Regular Civil Suit No. 332 of 1981 was decreed by the trial court after twenty three years on 25th June, 2004 whereby the plaintiff no.1 was held entitled to 1/4th share, defendants no.1 to 4 were held entitled to 1/24th share each and defendants no.5 and 6 for 1/6th share each in the suit lands. The decree passed by the trial Court was challenged by the plaintiffs in Regular Civil Appeal No. 142 of 2010 ("First Appeal" for short). The appellants herein did not prefer appeal though defendant no.7, defendant no.8 and defendant no.11 were not alloted any share in the decree for partition, who had sold the part of the suit property to appellants no.2, 3, 4, 5 and 6. Neither these defendants nor the appellants had preferred Appeal against the judgment and decree passed by the trial Court. It is to be stated that, appellants no.2, 3, 4, 5 and 6 were infact 'aggrieved', by the judgment of the trial Court for the simple reason that in the decree of partition, no land was alloted to those defendants from whom appellants had purchased the part of the suit land during the pendency of the
