The court ruled that all necessary parties must be included in partition disputes, and exclusion invalidates prior decrees, ensuring a fair adjudication on property rights.

JUDGMENT :

SANJAY A. DESHMUKH, J.

1. This appeal is preferred against the judgment and decree passed in Regular Civil Appeal No. 201 of 2015 dated 28.02.2022, by Ad-hoc District Judge-2, Wardha, which was filed against the judgment and decree passed in Regular Civil Suit No. 70 of 2009.

2. Brief facts of the case are as under:

The respondent No. 1 filed suit against respondents except respondent No. 10 for partition. The suit was decreed. The appeal was preferred by third party the appellant. He is claiming that he is owner of Survey No. 365, village mouza Waigaon (Nipani) District Wardha which is subject matter of suit. The appeal was dismissed and it was held that appellant failed to prove his right in the suit property Survey No. 365.

3. Learned Advocate for the appellant submitted that the name of appellant appearing in the revenue record i.e. 7/12 extract of Survey No. 365 as per mutation entry No. 1480 which was effected in the year 2011. It is not challenged till today by the respondents. Other old revenue record and entries in it are also pointed out. The appellant submitted that all the documents were filed in view of the directions of this Court by order dated 15th March, 2024. The valuable right of appellant is affected. It is lastly prayed to set aside the impugned judgment and decree of the trial Court as well as the first appellate Court and remand the suit before the trial Court for a fresh hearing on merit.

4. Learned Advocate for the respondents strongly objected and submitted that earlier partition took place between forefathers of the appellant and the respondent No. 1 and other family members. As per the impugned judgment and decree the Tahsildar Wardha passed final order for effecting partition as per Section 85 of the Maharashtra Land Revenue Code, 1966. He pointed out some revenue record to show that there was earlier partition. In support of it a Pursis of details of earlier partition is also filed. He further pointed out revenue record which shows that partition was effected earlier. He submitted that some of the properties are sold by this appellant which shows that there was earlier partition. It is lastly submitted to dismiss the appeal.

5. Perused the impugned judgments and decrees of both Courts. From revenue record it is clear that appellant’s name is recorded to the record of rights of the suit property Survey No. 365. He was not made party to the suit and in his absence, said property cannot be partitioned. It is patent illegality in the impugned judgments and decrees of both the Courts.

6. As far as defence of respondent as to the earlier partition is concerned it is matter of evidence and the parties are at liberty to adduce evidence to establish the existence and non existence of earlier partition by metes and bounds.

7. The impugned judgments and decrees of both the Courts are set aside. The appeal deserves to be allowed. The appeal is allowed and disposed of. The suit deserves to be decided on merit. Hence, the following directions.

8. The learned trial Court is directed to decide the said suit on merit by giving full opportunity to this appellant and all the parties to plead and for that amend their pleadings.

9. The plaintiff is directed to amend the suit and add this appellant as defendant in it. If he is not added within a month from today trial Court shall dismiss the suit.

10. The earlier partition is in dispute therefore all the properties of late Nama, who was common ancestor of the appellant and respondents mus