IN THE HIGH COURT OF JUDICATURE AT BOMBAY rrpillai CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 166 OF 2023 WITH INTERIM APPLICATION NO. 2099 OF 2023

1. Smt. Umabai Dattu Bhoir (Since deceased through legal heirs Applicant no. 2, 3 and 4)

2.. Indira Anant Thakur Age : 55 yrs, Occu : Housewife R/o. Tembhode, Taluka – Panvel District – Raigad, Pincode : 401405

3. Manda Pandurang Bhoir Age : 50 yrs, Occupation – Housewife R/at : Dahisar Mori, District Thane … Appellants Pincode : 400 612 (Original Defendants)

Versus

1. Malati Kisan Bhagt Age : 55 Years, Occu : Housewife R/at – Kalyan, Koliwada District - Thane

2. Hirabai Gajanan Bhagat Age – 50 years, Occu : Housewife R/at: Panvel, Koliwada, District – Raigad … Respondents Pincode - 415501 [Org. Plaintiffs]

Mr. Drupad S. Patil a/w. Mr. Prasad Keluskar for the Appellants.

None for the Respondents.

CORAM : GAURI GODSE, J.

DATE : 29^th APRIL 2025 JUDGMENT :

1. In view of the order dated 1^st April 2024, this appeal is heard for final disposal. Heard learned counsel for the appellants. Though served, none appeared for the respondents.

2. The trial court rejected the plaint under clause (d) of Rule 11 of Order VII of the Code of Civil Procedure, 1908 [“CPC”]. However, the appellate court reversed the trial court’s order and restored the suit to its original position by setting aside the order of rejection.

Hence, this appeal by the original defendants.

3. The appellants had filed an application under the Bombay Regulation VIII of 1827 [“Bombay Regulation”] for the grant of an heirship certificate. The respondents were not party to the proceedings initiated by the appellants. By order dated 21^st August 2018, the appellants’ application was allowed, and it was declared that the appellants are recognised as the legal heirs of deceased Changa @ Changu Pada Bhoir. Accordingly, the heirship certificate in favour of the appellants was issued in the form contained in Appendix B of the Bombay Regulation.

4. The respondents also claim to be heirs and legal representatives of the deceased Changa @ Changu Pada Bhoir. The dispute between the parties regarding the title pertains to the same property. However, both parties claim that their respective predecessor in title by name, Changa @ Changu Pada Bhoir is the owner of the suit property. The respondents filed a civil suit for a declaration that they are the owners of the suit property and further prayed for a declaration that the proceedings under the Bombay Regulation and the certificate issued therein would not bind them. In this suit, the appellants filed an application under Order VII, Rule 11 of the CPC, for the rejection of the plaint. The trial court rejected the plaint, holding that the Civil Court would not have jurisdiction to revoke the heirship certificate granted by the Testamentary Court.

5. The trial court held that the dispute between the parties was in respect of who is the legal heir of deceased Changa @ Changu Pada Bhoir, and thus, the same can be decided by the Testamentary Court and not by the Civil Court. The trial court held that, since there were two separate heirship certificates relied upon by both parties, in the absence of any concrete decision by the Testamentary Court regarding the legal heirs of the deceased, Changa @ Changu Pada Bhoir, no relief could be granted in the Civil Court. Hence, the appellants’ application under Order VII Rule

11 of the CPC was allowed, and the plaint was rejected.

6. The respondents preferred an appeal challenging the rejection of the plaint. The respondents relied upon the decision of this court in the case of Parvatabai @ Beby wd/o Parasram More and Another vs. Surekha @ Rekha wd/o. Dashrath Surjuse¹. The appellate court held that, considering the averment in the plaint, the suit was based on the right accrued to the plaintiffs as heirs of the deceased in respect of the suit property. Since two heirship certificates were issued by the Testamentary Court, and the issue raised concerned the right to t