Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Online)(Bom) 1055

HIGH COURT OF BOMBAY
Sarang V. Kotwal, J
Concord Co-operative Housing Society – Appellant
Versus
Amedmal Bhatewada (deceased) – Respondent
CIVIL REVISION APPLICATION NO. 285 OF 2022 | WRIT PETITION NO. 6701 OF 2022 | CIVIL REVISION APPLICATION NO. 406 OF 2022 | WRIT PETITION (STAMP) NO. 13161 OF 2022

Advocates:
For the Appellants/Petitioners: G.S. Godbole, S. M. Gorwadkar, Anil Anturkar, R. D. Soni, Virag Tulzapurkar, Surel Shah, Mayur Khandeparkar
For the Respondents: Shon Gadgil, Umesh Mankapure, Sugandh Deshmukh, Irvin D’Souza, Vaibhav Thorve, Harshvardhan Suryavanshi, Karan Parmar, Chaitanya Nikte, Hitanshu Jain

An application for sending a precept to the Collector under Section 54 of the CPC is a ministerial act not requiring notice to all parties; limitation does not apply as it does not constitute execution of a decree.

Headnote:(A) Code of Civil Procedure, 1908 - Section 54 and Order XX - Land dispute involving properties originally owned by Amedmal Bhatewada and challenged by Concord Co-operative Society and others - The matter involves common questions of law concerning legacy rights and application of civil procedure in the execution of decrees for partition. (Paras 1, 28, 48)

(B) Principles of Natural Justice - The court affirmed that no notice is required under the circumstances where the application is simply a reminder to perform a ministerial act as opposed to an adjudication of rights. Procedural formalities in such cases do not require all parties to be heard. (Paras 26, 32)

(C) Limitation and Locus Standi - The court ruled that the application for sending the precept to the Collector does not constitute execution of a decree; hence limitations do not apply. Additionally, the locus of heirs to pursue rights is relevant only if the original plaintiff's title is established. (Paras 12, 29)

Facts of the case:
The case involves a property dispute where the subject properties were owned by deceased Amedmal Bhatewada, with competing claims from a society and other private entities. The matter revolves around recorded disputes regarding title and partition dating back to the 1930s and 1940s. (Paras 3-9)

Findings of Court:
The court found no illegality or irregularity in the lower court's decision to send a precept to the Collector for partitioning the property as per the existing decree, dismissing all petitions and appeals. (Paras 48, 49)

Issues: The main issues addressed include the legal standing of purported heirs in a partition claim, the interpretation of procedural necessities post-preliminary decree, and the distinction between execution of decree and ministerial acts. (Paras 18, 19, 26)

Ratio Decidendi: The court concluded that a decree under Section 54 for partition of estate does not require further adjudication of rights and remains effective as administrative action. Hence, applications reminding courts of such duties do not attract limitation. (Paras 32, 36)

Result: All applications and petitions dismissed, interim relief extended for four weeks.

Table of Content
1. common questions of law arising in multiple cases. (Para 1 , 2)
2. historical ownership and litigation related to the properties. (Para 8 , 9)
3. importance of documents overlooked by the court. (Para 10 , 11 , 12)
4. arguments about locus standi concerning legal heirs. (Para 15)
5. impacts of the alleged satisfaction of decrees over property rights. (Para 16 , 19)
6. court's observations on procedural adherence and limitations. (Para 27 , 28)
7. nature of applications made under cpc provisions. (Para 30 , 31)
8. differences between preliminary and final decrees. (Para 32 , 34)
9. final determination of precedents concerning petitioner's arguments. (Para 45 , 46)
10. final ruling confirms lower court's decision. (Para 47 , 48 , 49 , 51)

JUDGMENT:

1. All these matters are decided by this common judgment because all the parties agree that all these matters involve common questions of law and are based on the common history regarding the facts and the disputed facts. In all these matters, notices were issued for final disposal. All the parties were duly served with such notices and learned Counsel appearing before me agree that the matters can be decided finally at this stage.

2. I have heard Shri G.S. Godbole, learned Senior Counsel for the Applicants in CRA No.285/2022, Shri S. M. Gorwadkar, learned Senior Counsel for the Petitioner in WP No.6701/2022, Shri Anil Anturkar, learned Senior Counsel for the Petitioner in WP(St) No.13161/2022, Shri R. D. Soni, learned counsel for the Applicant in CRA No.406/2022, Shri Virag Tulzapurkar, learned Senior Counsel, Shri Surel Shah, and Shri Mayur Khandeparkar, learned counsel , for the respective contesting Respondents.

3. C.R.A. No.285/2022 is preferred by Concord Co-operative Housing Society and its Chairman & Treasurer. The society claims to be the owner of the property.

4. Writ Petition (Stamp) No.13161/2022 is filed by Venkatesh Landmark, through its Partners, who are developing the property by making construction on the property.

5. C.R.A. No.406/2022 is filed by Yashcon Urban Development LLP, through its Partner. The Applicant claims to be owner of a part of the subject properties.

6. Writ Petition No.6701/2022 is filed by one of the members of the Concord Co-operative Housing Society.

7. The contesting Respondents, in all these matters, claim to be the legal heirs of one Amedmal Indrabhan Bhatewada. In all these matters, the Applicants/Petitioners have challenged the order dated 27.4.2022 passed by the 10th Jt. Civil Judge, Senior Division, Pune in Civil Misc. Application No.1658/2021. In C.R.A. No.285/2022, further prayers are made for permission to file certain documents which were not available at the time of passing of the impugned order in the Court of 10th Jt. Civil Judge, Senior Division, Pune.

Subject properties :

8. The dispute is about the following properties :

a] Land bearing Survey No.214, Hissa No.1/1 admeasuring 00 Hectare 97 Ares + pot kharaba 0 Hectare 02 Ares, assessed Rs.0.94, situated at village Lohegaon, Taluka– Haveli, District–Pune.

b] Land bearing Survey No.214, Hissa No.1/4 admeasuring 1 Hectare 15 Ares, assessed Rs.1.06/-, situated at village Lohegaon, Taluka–Haveli, District–Pune.

(Both these properties together are hereinafter referred to as ‘the subject properties’).

9. Brief history and facts :

i. The subject properties were originally owned by one Bapu Kashiba Devkar. He died on 27.3.1939. After that, those subject properties were held by his heirs Shankar Bapu Devkar and Kisan Bapu Devkar. Their names were entered by Mutation Entry No.1942.

ii. Amedmal filed Small Causes Suit No.4658/1935 against Shankar Bapu Devkar for recovery of money. The suit was decreed.

iii. Darkhast No.560/1937 was filed by Amedmal for executing the decree in Suit No.4658/1935, in which half undivided share of Shankar was attached and was put up for sale in execution.

iv. On 19.12.1939, Amedmal Bhatewada purchased Shankar’s share in the subject properties in the Court auction. His n

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