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2019 Supreme(Bom) 695
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
A.M. DHAVALE, J.
Kundlik Laxman Wagaskar - Appellant
Versus
Subhadrabai Arjun Kalamkar - Respondent
Civil Application No. 3669 of 2019; Review Application St No. 6939 of 2019; Second Appeal No. 21 of 2018
Decided On : 25-04-2019
Jiwan J Patil, Adv., D.S. Manorkar, Adv.
A person is said to be aggrieved when their legal rights are determined by the court and it would be binding against them.
Headnote:
Condonation of Delay - Review Petition - Banarasi & Ors. Vs. Ramphal (2003) 9 SCC 606 - The court discussed the legal position expounded in the Banarasi & Ors. Vs. Ramphal case and its relevance to the present review petition.
Fact of the Case:
The review petition concerns the delay in filing a Review Petition against the order holding that a Second Appeal was not maintainable. The case involves a dispute over partition and separate possession of ancestral properties.
Finding of the Court:
The court found that the Second Appeal was not maintainable as the appellants were not parties to the original suit and the judgment and decree in the suit did not bind them. The court also rejected the review application, stating that the appellants had no right of appeal as they were not aggrieved parties.
Issues: The main issues revolved around the maintainability of the Second Appeal and the rights of the appellants to challenge the judgment and decree in the original suit.
Ratio Decidendi: The court held that the appellants, not being parties to the original suit, were not bound by the judgment and decree, and therefore, had no right of appeal. The court also emphasized that a person is said to be aggrieved when their legal rights are determined by the court and it would be binding against them.
Final Decision: The court dismissed the Second Appeal and rejected the review application, stating that the appellants had no right of appeal as they were not aggrieved parties.
A.M. DHAVALE, J.
1. This is an application for condonation of delay of 89 days in filing Review Petition.
2. The petitioner seeks to review the order passed by me on 31st October, 2018 holding that the Second Appeal No. 21/2018 preferred by the present appellants, who were not parties to the suit was not maintainable. Thereafter, the petitioners/appellants had approached the Apex Court by filing application for Special Leave Petition. The Apex Court passed the following order :-.
The learned Counsel for petitioners relies on the decision of this Court in Banarasi & Ors. Vs. Ramphal, (2003) 9 SCC 606 (para 8) and contends that the High Court has omitted to consider the legal position expounded in the said decision. The petitioners are free to point out that position to the High Court by way of a review application, if so advised. The same be considered on its own merits.
Special Leave petition is disposed of as withdrawn with liberty to challenge the impugned order and the order passed in review application before this Court, if necessary.
3. The basic facts necessary to decide this review petition may be stated as follows :-
(i) Regular Civil Suit No. 220/1996 was filed by Subhadrabai (respondent No.1) and her one son and two daughters for partition and separate possession of their 1/5th share each. It was filed against Arjun, husband of Subhadrabai and father of plaintiff Nos. 2 to 4. The partition was claimed of following properties.
(ii) (a) Land Gut No. 224 admeasuring 20 R out of which 06R, land (b) Land Gut No. 208, 3 hector, 37 gunthas out of which 1 hector 57R both situated at Shrigonda, Dist. Ahmednagar.
4. According to the respondent No. 1 and her children Arjun, her husband was addicted to liquor. She herself was handicapped and her son plaintiff No. 2 Dada was suffering from tuberculosis. Arjun was neglecting them. The suit property was ancestral property.
5. Arjun filed written statement denying the material allegations in the claim. He admitted that the suit property was ancestral property and vaguely stated that suit was not maintainable on the ground of non-joinder of necessary parties. During the pendency of the suit, plaintiff No. 2 - Dada died. The trial court decreed the suit and awarded 1/4th share to the plaintiffs No. 1, 3 and 4 and the defendant Arjun. The trial court observed that 7/12 extract disclosed that defendant Arjun was having 2 brothers and sisters. If they claimed in his share, it will be determined from entire property left by their father. There was no pleading regarding relinquishment etc. Thus, there was reference but no determination by the Court about the rights of the brothers and sisters of Arjun.
6. When this suit was pending, Regular Civil Suit No. 66/2004 was filed by four sisters against Arjun for partition in respect of land of 3 hector 37R in Gut No. 208 and land 23 R in Gut No. 224. It was claimed that it was joint family property and the names of the plaintiffs were recorded in 7/12 extract on the death of their father. The defendant Arjun had wrongly got his name entered into the 7/12 extract. The plaintiffs were entitled for 1/5th share each. The said suit was compromised as per compromise decree dated 28.04.2004. The entire land Gut No. 224 (23R) was given to Arjun, while the land in Gut No.208 was divided into his 4 sisters the plaintiffs 1 to 4 to the extent of one hector and 57 R.
7. As per the compromise decree, the Tahsildar effected the said partition in the revenue record. However, Arjun had not brought this fact to the notice of the Court in Regular Civil Suit No. 220/1996 (since the decree was passed by the same Court, the Court must be aware of this decision).
8. Arjun preferred the First Appeal RCA No.66/2008 against the Judgment and decree in RCS No. 220/1996. Initially, the appeal was dismissed on merits but in the Second Appeal No.318/2017, this Court observed that the Judgment was cryptic and without considering the evidence therein. The Judgment in First Appea
