1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6619 OF 2009 Khairuddin Mehebubali Kazi .. Petitioner versus Shakil Ahmad Abdul Gafoor Kazi & Ors. .. Respondents --- Mr.R.M.Agarwal i/by Mr.G.R.Agarwal for the petitioner. Mr.S.S.Patwardhan for respondent Nos.1 to 3. --- CORAM : A.S.OKA, J. DATE ON WHICH JUDGMENT IS RESERVED : 28th January 2010. DATE ON WHICH JUDGMENT IS PRONOUNCED: 22nd March 2010. JUDGMENT: . On 5th October 2009 notice for final disposal was issued by this Court. The challenge in this writ petition under Article 227 of the Constitution of India is to an order dated 20th January 2009 passed by the learned Joint Civil Judge Senior Division, Nasik. The said order has been passed in a final decree application filed by the 1st to 3rd respondents. An application at Exhibit 49 was made by the petitioner 2 raising an objection to maintainability of final decree application. By the impugned order the said application has been rejected. 2. The litigation subject matter of this writ petition has a very chequered history. One Benabi mard Inam, .Sardar Begum mard Mahomadkha, Fakoridin Amiroddin ,Nuroodin Bahoddin, Bysoriddin Bahoddin and Faijudin Nisa filed Special Regular Civil Suit No.101 of 1925 in the Court of the First Class Sub-Judge at Nasik. The suit was filed for partition and separate possession of their share of two annas and 11 ½ pies in a rupee in the property allegedly belonging to one Gaphur. The said Gaphur died 40 years prior to institution of the said suit leaving behind five daughters (Pyarasahib ,Manuma , Chhotusahib ,Sardar Begam [2nd plaintiff] and Benabi [1st plaintiff] ) and two sons (Sayad Ahmed and Lalasahib). The said Sayad , his widow and daughter died before the institution of the suit. The husband of the daughter of said Sayad and two sons were 5th , 6th and 7th defendants respectively. The said Lalasahib died in the year 1906. He was survived by two widows. The first defendant is a widow of the said Lalasahib. The third plaintiff Fakoriddin was the son of Pyarasahib. Another daughter of Gafur by the name Manuma died prior to institution of the suit. The fourth , fifth and sixth plaintiffs were the sons of Chottusahib . The fourth defendant was also her son. The 3 second defendant was a mortgagee from the first defendant. The third defendant was a lessee from the first defendant and the widow of deceased Sayad. Initially, the suit was dismissed. There was an order of remand passed by this Court by judgment and decree dated 23rd March 1935. The suit was thereafter decreed by passing a decree the operative part which reads thus: “I declare that the total share of the plaintiffs in this suit, in the suit property is 11 annas 6 103/210 pies in a rupee and they can get their share made separate after they pay to defendant No.1 Rs.793 due for their share of the meher due to defendant No.1, and Rs.673 for their share of the mortgage dues paid to defendant No.2. The lands to be partitioned through the Collector and the house and sites to be partitioned through the Court after the above amounts are paid. The amounts should be paid within 6 months from today. The costs of the plaintiffs and defendants Nos.1 to 3 should come out of the suit property. One set of pleader’s fees to defendant Nos.1 to 3. Defendant Nos.4 to 7 to bear their own costs.” It appears that an appeal was preferred by the plaintiffs and fourth to seventh defendants against the aforesaid decree to this Court. By judgment and order dated 26th January 1938, a division bench of this Court disposed of the appeal by observing that the fourth to seventh defendants should pay adequate stamp before the they obtain possession of their share. The last paragraph of the judgment of this Court reads thus: “ The last point is agreed to and again we think rightly, if any of 4 the plaintiffs pays Rs.720 to the first defendant towards the amount due, for Meher, he should be at liberty to take possession of the whole property. The plaintiffs are given six months’ time to pay the amount due. The rest of the decree is confirmed. Costs of the appeal of all the parties, except of respondent No.3 , to come out of the estate.” 3. It appears that the original plaintiff No.3 Fakoridin paid a sum of Rs.720/- to the first defendant and obtained possession as permitted by this Court . In the year 1943 , one Kuvarbai Balsara claiming to be the assignee of the aforesaid decree from the 2nd plaintiff filed a suit for partition and separate possession of her share of 2 annas and 10 7/20 pies in the suit properties. The said suit was decreed in November 1945. A Regular Civil Suit No.583 of 1951 was filed by one Badruddin and seven others who were claiming through the first plaintiff. Some of the original plaintiffs in Suit No.101 of 1925 including Fakiroddin (plaintiff No.3) were made party defendants to the said suit. The said suit was filed by contending that the 3rd plaintiff Fakiroddin in Civil Suit No.101 of 1925 took over possession of the share of the other plaintiffs in the said suit on behalf of all the plaintiffs and therefore , the plaintiffs in said Suit No.583 of 1951 claimed possession of their share in the total share of the plaintiffs in Suit No. 101 of 1925. The said suit ended in compromise and a consent decree was passed under which certain properties were allotted to the share of the plaintiffs in the said Regular Civil Suit No . 583 of 5 1951 .Thereafter one Daulatbee , widow of Badrouddin and 22 others filed Special Civil Suit No.18 of 1976 for partition and possession of their share. It was contended that the plaintiff Nos.1 to 20 and 23 in the said suit were the heirs and legal representatives of the plaintiff No.1 in Suit No.101 of 1925. The fourth and fifth plaintiffs (Nuruddin and Bysoriddin) in Suit No. 101 of 1925 were plaintiffs No.21 and 22. It was contended that plaintiff No.3- Fakiroddin in the said suit No.101 of 1925 had taken possession of the share of all the plaintiffs on behalf of the plaintiffs in the said suit. The suit No.18 of 1976 was contested by the defendants therein by contending that in view of the decree passed in Regular Civil Suit No.583 of 1951, the said suit was barred by principles of res judicata. The suit was dismissed by judgment and decree dated 20th January 1978 by the learned Civil Judge Senior Division. An appeal was preferred by the plaintiffs in the said suit before the District Court. While dismissing the appeal , the District Court observed that parties to the said suit and earlier suits being Suit No.101 of 1925 and Suit No.583 of 1951 were the same. It was held that the said suits were relating to property held by Gaphur and therefore the finding of the trial Court that the suit was not maintainable was upheld by the District Court. Thereafter ,the present 1st to 3rd respondents filed Final Decree Application No.1 of 2007. A final decree was sought on the basis of the decree passed in 6 Suit Nos. 583 of 51 and 101 of 1925. The said 1st to 3rd respondents are claiming through Nurooddin who was the 4th plaintiff in Suit No. 101 of 1925. The present petitioner is the 1st respondent in the final decree application who raised an objection to the maintainability of the said application by filing an application at Exhibit 49. 4. The learned counsel appearing for the petitioner invited my attention to the decree passed by this Court in Appeal No.228 of 1935 by which decree passed in Suit No.101 of 1925 was modified. He submitted that as per decree passed by this Court, any one of the plaintiffs in Suit No.101 of 1925 were entitled to take possession of the whole suit property on paying a sum of Rs.720/- to the 1st defendant in the said suit. He invited my attention to the order dated 19th November 1938 passed by the sub-ordinate Judge below application at Exhibit 35 in Regular Darkhast No.41 of 1938. The said Regular Darkhast was filed by the plaintiff No.3 Fakiroddin for execution of the decree passed in Suit No.101 of 1925. He submitted that grievance made by the original 1st and 2nd defendants by making the application at Exhibit 35 in the execution application was that in execution , the possession of the entire suit property and not only the share of the plaintiffs was taken over by the plaintiff No.3 Fakiroddin. He submitted that while rejecting the said application the learned sub- 7 ordinate Judge held that under the decree of the High Court any of the plaintiffs were entitled to take possession of the entire property on payment of Rs.720/- to the 1st defendant. He invited my attention to a copy of Civil Application No.68 of 1939 filed by the contesting defendants in First Appeal No.228 of 1935. He pointed out that an amendment to the decree was sought by the defendants of the decree passed by the High Court to the effect that any of the plaintiffs on payment of Rs.720/- to the 1st defendant shall be entitled to take possession of the whole property to which all the plaintiffs are entitled, namely, total share of 11 annas and 6 103/210 pies in a rupee. He submitted that this Court did not modify the decree. He submitted that this fact apart from the order dated 19th November 1938 passed in Special Darkhast No.41 of 1938 concludes the issue and it must be held that plaintiff No.3 became entitled to the entire suit property to the exclusion of others. He submitted that the decree passed in Suit No.101 of 1925 has merged in the decree passed by this Court. He submitted that the fact that Civil Application No.68 of 1939 was rejected shows that this Court intended that the plaintiff who pays the amount to the first defendant should take the entire suit property. He submitted that there are possession receipts placed on record of this petition showing that possession of the entire suit property was handed over to Fakiroddin i.e 3rd plaintiff after payment of the sum of 8 Rs.720/-. He submitted that in the circumstances, final decree application at the instance of persons claiming through 4th plaintiff in Suit No.101 of 1925 was not maintainable as the entire property has been already taken over by the 3rd plaintiff. He, therefore, submitted that the learned trial Judge committed a gross error by entertaining application for final decree after lapse of more than 50 years. He submitted that the said application was not maintainable. 5. The learned counsel appearing for the 1st to 3rd respondents submitted that the plaintiffs in Suit No.101 of 1925 were collectively claiming a share of 11 annas and 6 pies in a rupee and the trial Court passed a decree holding that the plaintiffs in the said suit together are entitled to share of 11 annas 6 103/210 pies in a rupee and they can get their share separated after payment of a sum of Rs.793/- to the 1st defendant and after payment of a sum of Rs.673/- for their share of mortgage dues paid to the 2nd defendant. He submitted that the only modification made by this Court is that if one of the plaintiffs pays a sum of Rs.720/- to the 1st defendant, he can take possession of the share of the plaintiffs on behalf of the plaintiffs. He submitted that one Kuvarbai, assignee of the 2nd plaintiff filed Regular Civil Suit No.239 of 1949 in which it was held that the plaintiff No.3 Fakiroddin obtained possession of shares of all the plaintiffs in which the 2nd plaintiff was 9 entitled to share of 2 annas 10 and 7/20 pies. He submitted that a separate suit was filed by Daulatbee and 23 others claiming to be the legal representatives of some of the plaintiffs in the original suit. The said suit was held as barred in view of decree passed in Suit No.101 of 1925 and Regular Civil Suit No.583 of 1951. Therefore, the 1st to 3rd respondents had no option but to apply for passing a final decree in respect of house property and for a direction for sending the decree in respect of agricultural lands for effecting partition to the collector. He submitted that the petitioner herein has not placed on record any document to show that agricultural lands were partitioned by the Collector in view of the judgment delivered in Special Civil Suit No. 101 of 1925. He pointed out that the issue of maintainability has not been finally decided under the impugned order and the trial Court has held that the application at Exhibit 49 was premature. He submitted that merely because original plaintiff No.3 Fakiroddin purportedly obtained possession of shares of all the plaintiffs under the decree , the other plaintiffs are not disentitled to separate possession of their shares. 6. I have carefully considered the submissions. It will be necessary to ascertain the effect of decree passed by this Court in appeal arising out of decree passed in Suit No.101 of 1925. The decree dated 23rd 10 March 1935 passed by the trial Court holds that the plaintiffs together were entitled to a share of 11 annas and 6-103/210 pies in a rupee. The effect of the decree passed by the trial Court in Suit No. 101 of 1925 is that the share of the plaintiffs was determined and it was held that the plaintiffs were entitled to get shares separated after they pay a sum of Rs.793/- to the 1st defendant being their share of the meher due to the 1st defendant and a sum of Rs.673/- being their share in the mortgage dues paid by the 2nd defendant. Time of six months was granted for payment of the amounts. 7. Perusal of the judgment in appeal shows that the decree passed by the trial Court is not disturbed on merits. The parties agreed before this Court that a sum of Rs.720/- is payable to the 1st defendant by the plaintiffs towards their share of meher payable to the 1st defendant. It was specifically held that even the 4th to 7th defendants were entitled to get separate possession of their shares by making payment of necessary Court fees. The first modification made by this Court is that meher amount of Rs.720/- instead of Rs. 793/- will be payable to the 1st defendant by the plaintiffs. The second modification which was made was that if any one of the plaintiffs pays a sum of Rs.720/- to the 1st defendant, the said plaintiff should be at liberty to take possession of the whole property. Thus, this Court did 11 not disturb the shares of all the six plaintiffs and their entitlement to obtain separation of their shares. This Court did not disturb the shares of defendant Nos.4 to 7. The only modification made was to enable any one of the plaintiffs to pay a sum of Rs.720/- to the 1st defendant towards the share of the plaintiffs in the meher payable to the 1st defendant and to take possession of the whole property. Rest of the decree of the trial Court was specifically confirmed. Thus, the plaintiff who pays a sum of Rs.720/- to the 1st defendant was to take the suit property on behalf of all plaintiffs and the payment of Rs.720/- was to be made by such plaintiff on behalf himself and other plaintiffs. There is nothing in the decree passed by this Court which takes away shares of the other plaintiffs or the shares of the fourth to seventh defendants therein. The decree of this Court does not have effect of conferring exclusive rights in respect of the shares of all the other plaintiffs on the plaintiff who pays a sum of Rs.720/-. The clarification sought by some of the defendants by filing the Civil Application No.68 of 1939 was that the plaintiff who pays a sum of Rs.720/- will not take whole of the property but will take total share of all the plaintiffs equivalent to 11 annas 6 103/210 pies in a rupee. Assuming that the said civil application was dismissed, as per the decree of this Court, it was open to the plaintiff who pays Rs.720/- to take possession of even the share of the defendants. If intention of this Court was to 12 deprive the other plaintiffs and fourth to seventh defendants of their right of obtaining separate shares in the suit properties, this Court would not have observed that "The next point taken by the appellants is not disputed and that is that defendants Nos. 4 to 7 should pay adequate stamp before they get possession of their share.” This observation makes it clear that only a facility was granted by this Court to any one of the plaintiffs to take possession of the entire property by paying a sum of Rs.720/- to the first defendant. Perhaps, this was to ensure that the first defendant gets a lump sum amount of Rs.720/- . This court did not disturb the entitlement of the parties to the suit to get their shares separated as per the decree of the trial Court . 8. At this stage, it must be noted that one Kuvarbai claiming to be the assignee of the 2nd plaintiff filed a suit for partition and claimed share of 2nd plaintiff equivalent to 2 annas 10/720 pies in the total share of the plaintiffs equivalent to 11 annas 6 103/210 pies. The original plaintiff No.3 Fakiroddin was the 3rd defendant in the said suit who resisted the suit on the ground that the suit property was Masjid Inam land which could not have been alienated by the 2nd plaintiff in Suit No. 101 of 1925 in favour of Kuvarbai who was the plaintiff in the said suit No.239 of 1943. The said suit was decreed by the trial Court 13 and it was held that the suit Kuvarbai was entitled to the share of the plaintiff No.2 of 2annas 10 7/20 pies. The Suit No.583 of 1951 was filed by the plaintiffs who were claiming through plaintiff No.1 in the Suit No. 101 of 1925. By a consent decree , their separate share was granted. 9. A strong reliance has been placed by the learned counsel appearing for the petitioner on order dated 19th November 1938 passed in Darkhast No.41 of 1938. The darkhast was filed by the 3rd plaintiff Fakiroddin for executing the decree passed in Suit no.101 of 1925. Application at Exhibit 35 was filed by the original defendant Nos.1 and 2 in Suit No.101 of 1925 alleging that possession of even the share of the 1st defendant was wrongfully taken by the said plaintiff No.3. While deciding the said application, the executing Court observed thus: “. Possession of all the property in suit, except the house, was handed over to plaintiff No.3. The house was in possession of defendant No.1 and on her application and on her furnishing security she was allowed time to continue in possession till the rainy season (October 1938 and) was over, as prayed for by her (Exh.20). After that defendant Nos.1 and 2 have made this present application disputing the delivery of possession to plaintiff No.3 on the allegation that plaintiff No.3 before presenting the darkhast in execution of the decree should have paid Rs.720/- and Rs.673/- to defendant Nos.1 and 2 respectively, that on such payment plaintiffs would have been entitled to receive possession of the share of the plaintiffs only and not of the whole of the property; that he should have sought 14 possession of the plaintiffs share in the land by partition through the Collector and in the house by partition through Court as laid down in the decree; and therefore, it is the contention of defendant Nos.1 and 2 that the darkhast presented by plaintiff No.3 for possession of the whole of the property was wrong and should be dismissed.” Thereafter, the trial Court observed that the main question was whether the 3rd plaintiff was entitled to take possession of only the total share of the plaintiffs. While dealing with this issue, the trial Court held thus: “.... But plaintiff No.3 has stated that in the appeal it was agreed that on payment of Rs.720/- to defendant No.1 he was to get possession of the whole of the property. Defendant No.1 does not enter the witness box and state that it was not so agreed, not only that, in the judgment of the High Court namely in the last para of it, is stated that it was agreed that possession of the whole of the property was to be given to any of plaintiffs paying Rs.720/- to defendant No.1 for her meher. Out of the whole property plaintiffs share has been declared as 11 pies 6 103/210 in a rupee. There are other share in the property besides defendant No.1 also, namely defendant Nos.4 to 7. Defendant No.1’s share is proportionately a small one and plaintiffs were contending that their share of the meher would have come to Rs.231-4.8 instead of Rs.793/- and when they have agreed to pay Rs.720/- instead, it appears that, defendant No.1 may have given up her share in the property. This view is more probable, because had it been otherwise, the mention in the decree of the High Court would have been that any of the plaintiffs on payment of Rs.720/- would be at liberty to take possession of all the property excluding the share of the defendant No.1 when there is no such mention and when the decree makes specific mention that possession of the whole of the property without any qualification was to be taken, there is no ambiguity; and it has to be taken that possession of the whole property was meant and not the share of the plaintiffs only as urged on behalf of the 15 applicants; and then there is no necessity of any partition either through the collector or through the court. In the result the possession taken by plaintiff No.3 is correct and the applicants are not entitled to any relief. The application has, therefore, to be dismissed.” (emphasis added) 10. What was observed by the Court was that the 1st defendant may have given up her share in the suit property and therefore , this Court has not stated that the plaintiff who pays a sum of Rs.720/- would be at liberty to take possession of all the property excluding the share of the 1st defendant. It was observed that the High Court did not direct that the plaintiff who pays the sum of Rs.720/- will obtain possession of only the share of the plaintiffs after getting the same partitioned either through the Collector or through the Court. This order will not help the petitioners. This order settles the issue of the rights claimed by the 1st defendant. The observation of the executing Court that there was no necessity of effecting partition relates only to the entitlement of the plaintiff who paid a sum of Rs.720/-to the first defendant of obtaining possession of the whole property. The said observation is that as such plaintiff was entitled to take possession of whole property , at that stage partition was not necessary. However, that part of the decree of the trial Court which holds that the plaintiffs and the fourth to seventh defendants can get their shares made separate, partly through the Collector and partly through the Court , 16 has not been upset by this Court in the appeal. The shares of the plaintiffs other than the plaintiff who