1 Review Petition No.2247/2005 with Review Petition No.2248/2005 with Civil Application No.1744/2003 with Civil Application No.7586/2003 with Writ Petition No.2555/2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD REVIEW PETITION NO.2247 OF 2005 IN CIVIL APPLICATION NO.7283 OF 2001 IN CIVIL REVISION APPLICATION NO.1351/1993 Prakash s/o Dattatrya Kulkarni ... APPLICANT VERSUS Mahendra s/o Ramdas Thakkar ... RESPONDENT ..... Shri P.V. Mandlik, Senior Counsel for applicant Shri M.N. Navandar, Advocate for respondent ..... W I T H REVIEW PETITION NO.2248 OF 2005 IN CIVIL APPLICATION NO.7279 OF 2001 IN CIVIL REVISION APPLICATION NO.1351/1993 Prakash s/o Dattatrya Kulkarni ... APPLICANT VERSUS Mahendra s/o Ramdas Thakkar & ors. ... RESPONDENTS ..... Shri P.V. Mandlik, Senior Counsel for applicant Shri M.N. Navandar, Advocate for respondents ..... W I T H CIVIL APPLICATION NO.1744 OF 2003 IN CIVIL REVISION APPLICATION NO.1011 OF 1996 Prakash s/o Dattatrayrao @ Baburao Kulkarni Talegaonkar ... APPLICANT 2 Review Petition No.2247/2005 with Review Petition No.2248/2005 with Civil Application No.1744/2003 with Civil Application No.7586/2003 with Writ Petition No.2555/2009 VERSUS Mahendra Ramdas Thakkar ... RESPONDENT ..... Shri P.V. Mandlik, Senior Counsel for the applicant Shri M.N. Navandar, Advocate for the respondent ..... W I T H CIVIL APPLICATION NO.7586 OF 2003 IN CIVIL REVISION APPLICATION NO.1011 OF 1996 Bhaskar s/o Sitaramrao Deshmukh & ors. ... APPLICANTS VERSUS Prakash s/o Dattatrayarao @ Baburao Kulkarni Talegaonkar & anr. ... RESPONDENTS ..... Shri R.G. Deo, Advocate for the applicants ..... W I T H WRIT PETITION NO.2555 OF 2009 Prakash s/o Dattatray Kulkarni ... PETITIONER VERSUS Ramchandra s/o Bhagwanrao Deshmukh & ors. ... RESPONDENTS ..... Shri P.V. Mandlik, Senior Counsel holding for Shri Amol Gandhi, Advocate for the petitioner Shri Pradeep Deshmukh, Advocate for respondents ..... 3 Review Petition No.2247/2005 with Review Petition No.2248/2005 with Civil Application No.1744/2003 with Civil Application No.7586/2003 with Writ Petition No.2555/2009 CORAM : K.U. CHANDIWAL, J. DATE : 13th December, 2010 PER COURT : 1. Heard extensively. In the Writ Petition Mr. Pradeep Deshmukh waives service for the respondents and agreed to be heard finally. 2. In the recovery proceedings initiated by Dhondiraj (the landlord), the tenant lost at two Courts, moved Civil Revision Application No.1351/1993. Smt. Godavaribai, the widow of Dhondiraj was brought on record. She has also preferred Civil Revision Application challenging observations by Civil Revision Application No.1011/1996. 3. The controversy now crypt in is, as to the rights in the immovable property between the alleged legal representatives of Smt. Godavaribai @ Sushilabai. Prakash claims rights based on will deed while Ramchandra, Prashant and Bhaskar stake rights being descendants or successors of Shri Dhondiraj and Smt. Godavaribai. 4. By Civil Application No.7279/2001, Revision applicant 4 Review Petition No.2247/2005 with Review Petition No.2248/2005 with Civil Application No.1744/2003 with Civil Application No.7586/2003 with Writ Petition No.2555/2009 sought to bring legal representatives of Godavaribai named as Ramchandra, Prashant and Bhaskar. At the same time, Civil Application No.7283/2001 was filed by Prakash, claiming that he be added as a party in place of deceased Godavaribai, based on the will deed dated 10.8.1999, whereby the property was bequeathed to him by Godavaribai. 5. These Civil Applications were disposed of by order dated 27.10.2004, rejecting application of Prakash. The Court observed that Prakash has not proved the will deed while the application No.7279/2009 made by Ramchandra and two others came to be allowed. 6. On 23.4.2007, brother Judge, in the light of legal position, as is required under Order 22 Rule 5 of the Civil Procedure Code, directed the learned District Judge to carry a enquiry as to who would be the legal representatives of deceased Godavaribai. Based on such directions, the learned District Judge has conducted enquiry in Misc. Civil Application (RJE) No.71/2007 and by his order dated 29.9.2008, has held as under : “Applicant Prakash Dattatraya Kulkarni as well as 5 Review Petition No.2247/2005 with Review Petition No.2248/2005 with Civil Application No.1744/2003 with Civil Application No.7586/2003 with Writ Petition No.2555/2009 non-applicants Ramchandra s/o Bhagwanrao Deshmukh, Prashant s/o Bhagwanrao Deshmukh and Bhaskar s/o Sitaram Deshmukh are legal representatives of deceased Godavaribai and they are to be added as party in place of Godavaribai in respect of the suit property in Civil Revision Application No.1351/1993, pending before the Hon’ble High Court of Judicature, at Bombay, Bench at Aurangabad.” 7. The order of the learned District Judge is questioned to the extent of findings entertaining rights of Ramchandra, Prashant and Bhaskar as legal representatives of Smt. Godavaribai. It is a matter of record, the above referred order of the learned District Judge is not tested by the branch of Ramchandra, Prashant and Bhaskar. 8. Though several submissions are advanced by both the learned counsel, adding to intricacies in the matter and opening several shades of controversies, the matter can be condensed to the extent, in the light of observation of the learned District Judge in enquiry under Order 22 Rule 5 of the Civil Procedure Code to facilitate adding above referred two groups in the array of legal representatives of Smt. Gondavaribai in both the revision applications, one moved by Godavaribai and the other by tenant Mahendra. This arrangement would certainly be facilitating both the 6 Review Petition No.2247/2005 with Review Petition No.2248/2005 with Civil Application No.1744/2003 with Civil Application No.7586/2003 with Writ Petition No.2555/2009 sides to get the Civil Revision Applications decided on its own merits. 9. Since status of Prakash as a legatee based on the will deed as subject of controversy in Special Civil Suit No.202/2006 pending on the file of learned Civil Judge, Senior Division, Nanded. In this substantial suit, both the parties would be at liberty to advance their rival contentions to prove the will or disprove the will, capacity of the testator or legality in the testator to bequeath the property. This Court, at this stage, need not to comment on either the genuineness of the will or the so called rights staked by Ramchandra, Prashant and Bhaskar being legal representatives from the branch of Dhondiraj Deshmukh. These aspects will be decided in the pending suit. 10. Considering the scope to review an order in the fourcorners of Order 47 of the Civil Procedure Code, I quite see that the learned Senior Counsel, barring commenting observations of the learned District Judge, is unable to point out that there was any error apparent on the part of this Court in allowing application of the tenant to implead Ramchandra, Prashant and Bhaskar as legal representatives or to reject the contentions of Prakash. However, as 7 Review Petition No.2247/2005 with Review Petition No.2248/2005 with Civil Application No.1744/2003 with Civil Application No.7586/2003 with Writ Petition No.2555/2009 indicated above, the controversy could be put at rest in the substantial suit. No scope for review. Challenge to the findings of District Judge in Writ Petition is not sustainable, as Prakash has failed to lead proper evidence to establish Will by examining the attesting witnesses, as Madhavrao or Prakash did not step in witness box. Learned Judge has considered legal position and reached to above prima faie findings. Indeed, he did not accept that Ramchandra Prashant and Bhaskar could look after Dhondiraj or Godavaribai as they were away from Nanded to attend their avocation. The learned District Judge was alive to the limited scope of inquiry under Order 22 Rule 5 of the Civil Procedure Code. No right and title could be conferred by such inquiry. Hence, Writ Petition is dismissed. 11. So far as deposition of rental are concerned, Mr. Navandar informs, by virtue of earlier directions, the rentals are deposited by the revision applicant Mahendra before the learned Civil Judge, Senior Division at Nanded in original proceedings. The same system would be continued till disposal of the revision application. However, the amount so deposited would be invested in a nationalised Bank by the learned Judge till outcome of the present revision applications. 8 Review Petition No.2247/2005 with Review Petition No.2248/2005 with Civil Application No.1744/2003 with Civil Application No.7586/2003 with Writ Petition No.2555/2009 12. Special Civil Suit No.202/2006 filed by nephews of deceased Godavaribai against Prakash shall be expeditiously disposed of by 30th June 2011. The learned Judge shall not entertain unreasonable accommodation to the parties in the said suit as Civil Revision Application is pending since 1993 before this Court. Whatever observations are made in the present proceedings, would be restricted to the review applications and the writ petition. The learned Judge seized with Special Civil Suit No.202/2006 shall not be influenced by the same. 13. In the set of above situation, the Review Application No. 2247/2005, 2248/2005, Civil Application Nos.1744/2003 and 7586/2003 and Writ Petition No.2555/2009 stand disposed of. No costs. 14. Necessary amendments in both the revision applications be carried out within 14 days. 15. Mr. Deshmukh for the branch of Ramchandra, Prashant and Bhaskar waives notice in respective applications. Mr. Amol Gandhi waives notice for Prakash in both the revision applications. 9 Review Petition No.2247/2005 with Review Petition No.2248/2005 with Civil Application No.1744/2003 with Civil Application No.7586/2003 with Writ Petition No.2555/2009 16. Civil Application No.11225/2006 moved by the tenant Mahendra to be taken up with Civil Revision Application No. 1351/1993 and Civil Revision Application No.1011/1996. K.U. CHANDIWAL JUDGE fmp/rp2247.05