1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO. 64 of 2005 Rajabai w/o Jibhau Thakare, Age 55 years, Occu.Nil, r/o. Nadase, Tq. Sakri, Dist.Dhule. ...APPELLANT (Orig.Deft.No.2) VERSUS 1. Jibhau s/o Dhondu Thakare, Age 57 years, Occu. Agril., r/o Nadase, Tq. Sakri, Dist. Dhule. (Orig.Deft.No.1) 2. Bhatu s/o Jibhau Thakare, Age 35 years, Occu: Agri., r/o Nadase, Tq. Sakri, Dist. Dhule. (Orig.plaintiff) 3. Sumanbai Jibhau Patil, Alias Sumanbai d/o Mamnsaram Patil, Age 41 years, Occu. Household work, r/o. Nadase, Tq. Sakri, Dist.Dhule. 4. Bharat Jibhau Thakare, Age 17 years through guardian now he has been major, r/o As above. (5. Narayan Jibhau Thakare, Age 27 years, Occu.Agri. r/o As above.) (In view of court's order dt.1.10.2009 abated against R/5). 2 6. Kashinath Kalu Patil, Age 41 years, Occu.Agril. r/o As above. ...RESPONDENTS (Orig.Defendants Nos. 3 to 6) ... Mr. S.K.Kulkarni, Adv., for the appellant. Mr.V.P.Raje, Adv., h/f C.R.Deshpande, Adv., for R.no.2. Mr.N.N.Desale, Adv., for respondent nos. 1,3,4 and 6. Appeal abated as against respondent no.5. ... WITH APPEAL FROM ORDER NO. 65 OF 2005 (With CA/9178/2005 In AO/65/2005) Bhatu s/o Jibhau Thakare, Age 35 years, Occu.Nadase, Tq. Sakri, Dist. Dhule. ...APPELLANT ORIGINAL PLAINTIFF VERSUS 1. Jibhau s/o Dhondu Thakare Age 57 years, Occu.Agril. r/o. Nadase, Tq. Sakri, Dist. Dhule. 2. Sau.Rajabai Jibhau Thakare, Age 52 years, Occu.Nil, r/o Chail, Tq.Sakri, Dist. Dhule. 3 3. Sumanbai Jibhau Patil, Alias Sumanbai d/o Mamnsaram Patil, Age 41 years, Occu.Household work, r/o Nadase, Tq. Sakri, Dist. Dhule. 4. Bharat Jibhau Thakare, Age 17 years through guardian Now he has been major, r/o as above. (5. Narayan Jibhau Thakare, Age 27 years, Occu.Agri., r/o as above.) (In view of Courts order dt.1.10.2009 appeal abated against respondent no.5.) 6. Kashinath Kalu Patil, Age 41 years, Occu.Agril., r/o as above. ..RESPONDENTS Mr.V.P.Raje, Adv., h/f C.R.Deshpande, Adv., for the appellant. Mr. S.K.Kulkarni, Adv., for respondent no.2. Mr. N.N.Desale, Adv., for respondent nos. 1,3, 4 and 6. ... CORAM: K.U. CHANDIWAL, J. DATE :24th Feb.,2010 *** PER COURT : 1. Heard respective Counsel. 2. The relations between the parties litigating are not in controversy. 4 3. Special Civil Suit No.41/1991 was filed by Bhatu Jibhau Thakare, son of defendant nos. 1 and 2. Defendant No.1 came with a case of divorce with his wife Rajabai, defendant no.2. On analysis of the evidence, the learned Civil Judge, Senior Division, Dhule, reached to the finding that divorce is not proved, however, he found entitlement of the plaintiff to the extent of one third share to the three properties i.e. Gat Nos. 406, 28/8 and 22/18 and also for its partition. 4. The plaintiff Bhatu carried the matter in appeal before the learned Additional District Judge, Dhule, in Regular Civil Appeal No.56/2007, the learned Additional District Judge, by order dt.21.9.2004, accepted entitlement of the plaintiff to partition, however, restricted the same while answering point no.1, to Gat Nos. 406/28/8 and 22/18 (confirming the order of the learned Joint Civil Judge, Senior Division, to this extent). 5. Learned Additional District Judge, while answering point No.3, which is formulated as "defendant no.1 to prove that there was legal valid divorce between him and defendant no.2", directed to get the same resolved and remitted the matter to the learned Joint Civil Judge, Senior Division, Dhule. However, while doing so, 5 the learned Additional District Judge restrained the parties litigating from transferring the suit properties in the name of others by any mode of transfer or by creating third party interest over the same. 6. The exercise of remanding the matter to the trial Court by the learned Additional District Judge, Dhule, restricting it to the extent of of issue no.3, referred above, is assailed by the original plaintiff and also original defendant no.2 Rajabai, mother of plaintiff. 7. Mr.Deshpande and Mr.Kulkarni, Counsel, submit that the approach of the learned Additional District Judge is contrary to the law, there was no cross objection from the husband Jibhau, still, the learned Judge kept the point No.3 alive and remitted the matter. Both the learned Counsel took recourse to the judgment in the matter of Banarasi and others Vs. Ram Phal ( AIR 2003 S.C. 1989) The position of law as enumerated in the matter of Banarasi will have to be considered in the peculiar facts of the said case as it was a suit for specific performance and the decree was limited, to the extent of refund of money which the aggrieved plaintiff challenged, seeking 6 specific performance. The condition was also imposed for the defendant in the said proceedings to deposit the money and on failure, to execute the sale deed. The rigour as created in terms of Sections 20 and 21 of the Specific Relief Act, would not be available with force in the present case as it revolves to partition between the parties. 8. One cannot be and should not be oblivious to the provisions of Order 41 Rule 33 of Code of Civil Procedure, which stipulates the powers of the appellate Court, permitting the appellate Court to consider all the points rather issues between the parties notwithstanding, the appeal is as to the part only of the decree and he may exercise his powers in favour of all or any of the respondents or parties, though such respondents/parties may not have filed appeal or objection. In the light of this situation, I do not agree to the contentions raised by Mr.Kulkarni, Counsel for Rajabai that, without there being cross objection from defendant no.1, Jibhau, learned District Judge could not entertain the appeal in the manner it was done. 9. The other contention raised is, the learned District Judge should have kept the appeal pending and referred the matter to the learned Civil Judge, Senior Division, to get 7 adjudication of issue No.3. Though this exercise was expected to be adhered, however, having not done so it will not change the colour and complexion of entire matter, or to rights of parties. 10. The parties litigating and particularly, defendant nos. 1 and 2 are quite old, they are at the evening of their life. They cannot be expected to wait for further decades to come to get rights and fruits in the properties to which their son Bhatu has staked claim. The situation demands, the appellate Courts direction to get the issues in relation to divorce between Jibhau and Rajabai (Original defendant no.2) decided by allowing both the parties to lead proper evidence, in the fact situation, cannot be said to be illegal or uncalled for. 11. The learned appellate Court has taken care, restraining the parties from alienating the property and directing said arrangement to remain in force till disposal of the proceedings. 12. Needless to add, the findings recorded by both the Courts in respect of shares and entitlement of plaintiff concerning land Gat Nos. 406, 408/1, 408/B-2 at Chail, G.No.43/1 at Nadse and G.Nos. 22/B and 22/18 at Rahud and house property Nos. 64, 65, 108 and 179 at Nadse, as 8 described in paragraph no.4 of the plaint, shall remain intact, being a finding of fact confirmed by the first appellate Court. It is for the learned Judge seized with the matter to allow the plaintiff to stake a claim of his entitlement to other properties which are not considered by the learned Civil Judge, Senior Division, and also in the appellate Court. 13. In the situation, both the Appeals from Order lack merit. It is dismissed. Considering the age of parties and matter, the learned Judge shall dispose of the Special Civil Suit No. 41/1991 within six months, to the extent of restricted issue. Civil Applications also disposed of. [K.U. CHANDIWAL, J.] agp/64-65-05ao