Krushnabai B. Ulwekar
& Ors. Vs. Gopal Shankar Ulwekar & Ors.  INSC 1443 (27 August
JURISDICTION CIVIL APPEAL NO.5286-87 OF 2008 (Arising out of S.L.P. (C)
No.14849-14850/2008) Krushnabai B. Ulwekar & Ors. ...Appellants Versus
Gopal Shankar Ulwekar & Ors. ...Respondents
O R D E R
These appeals are
directed against the judgment and decree dated 27.6.2007 passed by a learned
Single Judge of the High Court of Judicature at Bombay in First Appeal Nos. 839
and 840 of 2005 dismissing the appeals preferred by the appellants herein from
a judgment and decree dated 21.3.2005 passed by the Bombay City Civil Court
disposing of Suit Nos. 7119/77 and 5708/84.
With a view to
appreciate the rival contentions of parties to which we shall refer to a little
later, we may at the outset study the genealogical table depicting the
relationship between the parties which is as under:
_____________________________________________________________ | | | | | Bhiku
Sowar Bama Padu Aditwar | | Bhiwas Shankar | | (i)Krushubai(ii)Ramshdev(iii) Om
Prakash | (iv) Lasmikant (v) rekha (vi) Kusum | (Petitioners) |
_____________________ | | | Gopal Manohar Kamlabai (Respondents) -1-
Indisputably, the partition took place prior to 1930. However, the same was an
oral one as no document in support thereof has been brought on record.
Sowar was allegedly
allotted 123 Guntas of land bearing Survey No. 24 Hissa No.1, Survey No.15
Hissa No.4 and Survey No. 11/14 admeasuring 1 Acre 26 Guntas, 1 Acre 10 3/4
Guntas and 0 Acre 6 1/2 Guntas respectively.
Aditwar is said to
have been allotted 100 Guntas of land bearing Survey No. 24 Hissa No.2, Survey
No.24 Hissa No.3,Survey No. 11/10 and Survey No.
11/2/2/ admeasuring 0
Acre 20 Guntas, 1 Acre 1 Gunta, 0 Acre 29 Guntas and 0 Acre 8 3/4 Guntas
We may, however,
place on record that the said assertion on the part of the appellants herein is
denied and disputed. According to the appellants, Hissa No.4 in Survey No.15
was furthermore sub-divided into 4 Hissas and the respondents were shown to be
in possession of Survey No. 15/4B admeasuring 31 1/4 Guntas.
contention of the appellants is that in the year 1964 the said sub-divisions
were cancelled by the revenue authorities. It is also contended that upon
coming into force of the provisions of the Urban Ceiling and (Regulation) Act,
1976, the appellants had shown in their return the entire Survey No.15 Hissa
No.4 as in their possession. However, it is submitted that in April, 1977,
entry in Survey No. 15 was changed.
An appeal filed
thereagainst by the appellants was dismissed.
However, a Second
Revision filed by the appellants is said to have been allowed. A writ petition
-2- filed by the respondents was not entertained on the premise that an
alternative remedy by a civil suit is available to the respondents.
It is, however, not
disuted that whereas the appellants before us, in view of the entry made in
Survey No.15 in April, 1977, filed a suit on or about 26.8.1977 which was
marked as Special Civil Suit No. 7119 of 1977, the respondents in view of the
observations made in the aforementioned writ petition filed suit No. 5078 of
1984 in the Bombay City Civil Court. Both the suits were heard together. The
parties adduced their oral and documentary evidence.
Whereas the suit
filed by the appellants was dismissed, the suit filed by the respondents was
decreed. Two appeals were preferred there against by the appellants. By reason
of the impugned judgment, the said appeals have been dismissed.
learned counsel appearing on behalf of the appellants would submit that the
High Court has failed to consider the contentions of the parties in their
Mr. Jain, learned
counsel appearing for the respondents, on the other hand, would support the
We may at this
juncture place on record that applications have been filed before us on behalf
of the respondents herein for permission to file additional documents on record
which were not part of the proceedings before the Courts below. The said
documents have been marked as Annexure R/22 and Annexure R/23. For the reasons
stated hereinafter, we are not inclined to entertain the said applications as
-3- From a perusal of
the impugned judgment it appears that the High Court proceeded on the basis
that partition effected between the parties prior to 1930 should be re-opened
as the shares between both the branches were not equal.
In our opinion the
questions which were required to be posed and answered by the High Court were;
(1) whether by reason of the said partition allotment of the joint family
property was made as contended by the respective parties; (2) whether Hissa
No.4 in Survey No. 15 or any part thereof was allotted either to Bhiwa or
Shankar; (3) whether the land in suit was correctly recorded in the Records of
Rights and who was in possession thereof.
In view of the
reliefs claimed by the parties in their respective suits, in our opinion, there
was no occasion for the High Court to adopt an approach to re-open the
partition so as to cause equitable distribution of the entire joint family
property between the parties.
We, therefore, are of
the opinion that as the approach of the High Court was not correct, interest of
justice would be sub served if the impugned judgment is set aside and the
matter is remitted to the High Court for consideration of the entire matter
afresh confining itself to the issues framed in the suit. If, however,
respondents intend to bring on record some additional documents, they may file
an appropriate application under Order XLI Rule 27 of the Code of Civil
Procedure before the High Court, which may be considered on its own merits.
It is accepted at the
Bar that the respondents are in possession of the lands in suit. If, that be
so, till any further order is passed by the High Court, the respondents shall
continue to remain in possession.
-4- We may,
furthermore, notice that applications for directions have been filed by the
respondents being I.A.Nos.15-16/2008. As we have not considered any of the
documents filed before us by the parties, we need not pass any order on these
aforementioned observations, the appeals are allowed.
However, it is made
clear that all contentions of the parties shall remain open.
[S.B. SINHA] .
[ CYRIAC JOSEPH ]
Delhi, August 27, 2008.