IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.482 of 1985. SECOND APPEAL NO.482 of 1985. SECOND APPEAL NO.482 of 1985. Sushilabai Sahebrao Shelke, since deceased 1a) Mahadeo Sahebrao Shelke adult, res. at Mangalwar Peth, at Post Madha, District Solapur. 1b) Ratan Bapurao Pol, adult, Kasba Peth, near Ekwira Temple, Barshi, Taluka Barshi, District Solapur ..Appellants versus 1. Shantabai Saudagar Bhange 2. Saudagar Genu Bhange (abated as per Order dated 11.9.2008) 3. Ashok Bhagwan Gavali ..Respondents Mr.Uday Warunjikar for the appellants Mr.P.B.Naiknaware for the respondents CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 6th April, 2009. DATED : 6th April, 2009. DATED : 6th April, 2009. ORAL JUDGMENT ORAL JUDGMENT ORAL JUDGMENT 1. One Sushilabai instituted Regular Suit No.249 of 1976 in the Court of Civil Judge, Junior Division, Madha, District Solapur, for Order of injunction restraining the defendants therein from interfering with the possession of the plaintiff with regard to the land bearing block nos. 291 and 295 situated at village Madha, District Solapur. -2- The learned Civil Judge, Junior Division, Madha by His judgment and decree dated 28th February, 1983 decreed the suit and granted injunction against the defendant Nos.1 to 3 and restrained them from obstructing the plaintiff from cultivation of the suit land. The defendants challenged the said judgment and decree by filing Civil Appeal No.302 of 1983 in the Court of Additional District Judge, Solapur, wherein the original plaintiff Sushilabai was shown as respondent. The learned Addl. District Judge by his Judgment and decree dated 18th June, 1985 allowed the appeal and set aside the decree passed by the learned Civil Judge, Junior Division and dismissed the suit with costs. It is this judgment and decree dated 18th June, 1985 is under challenge in this Second Appeal. 2. Across the bar, learned Advocate Mr. Warunjikar, upon instructions admitted that as of today Mahadeo and Ratan are the appellants who are the heirs of Sushilabai. I have heard learned Advocates on both the sides. Before me it was sought to be agitated by learned Advocate Mr. Naiknaware on behalf of the respondents that Sunderabai could not have executed the Will in regard to the suit land and the beneficiares of -3- Sushilabai could not have taken benefit of the Will as a result of that. 3. Considering the entire matter, I am of the view that the suit itself was filed for limited purpose, namely to protect the possession of the plaintiff I am of the view that it would be proper if such of the parties who are interested in protecting their rights in regard to the suit properties, namely Gut NO.291 and 295 now can be permitted to institute appropriate proceeding to protect their rights in regard to the suit property rather than going into the minute details as to whether the learned trial Judge was right in granting injunction as substantial developments have taken place since after the institution of the suit, in as much as across the bar it was pointed out by the counsels on both the sides that the effect to the Will was not given in as much as no mutation entries were carried out in the 7/12 extract and if that is so, it is possible that various other persons may have acquired right in regard to the suit property. In my view, in the fitness of the things, the appeal will have to be disposed of with clarification that if a particular party is interested in protecting its right in -4- regard to the suit property, the said party is free to institute appropriate proceeding All questions concerning the so called Will of Sushilabai are left open so that the party who is interested in taking benefit of the Will or the party who is aggrieved may agitate its right before the appropriate forum as and when suit is instituted in that behalf. In my view, the aforesaid Order will meet the ends of justice. It is clarified that no views are expressed on Sushilabai’s authority to make Will. For the reasons mentioned aforesaid, I pass the following Order. ORDER . The impugned judgment dated 18th JUne, 1985 passed by the learned Addl. Distirct Judge in Civil Appeal No.302 of 1983 is confirmed without going into the merits of the various pointed raised before the learned Judge. ii. Such of the party who is interested in protecting its right in regard to the suit properties i.e. Block No.291 and 295, Village Madha, District Solapur, is free to institute appropriate proceeding to protect its right. -5- iii. All questions are kept open. The question whether Sushilabai had authority to execute the Will in regard to the suit land is also left open. The question whether Sushilabai’s Will actually came into effect or otherwise is also left open. iv. In the facts and circumstances of the case, there shall be no order as to costs. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)