-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.500 OF 2007 APPEAL NO.500 OF 2007 APPEAL NO.500 OF 2007 Maruti Hari Kamble ...Appellant vs. 1.Vijay Ganpati Kamble 2.Salubai Ganpati Kamble ...Respondents Mr.D.S.Sawant for the Appellant Mr.S.S.Patwardhan for Respondent Nos.1 and 2 CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : MARCH 4, 2008. : MARCH 4, 2008. : MARCH 4, 2008. JUDGMENT: JUDGMENT: JUDGMENT: 1. Heard learned counsel for the Appellant who is the original defendant No.1. The first Respondent is the original plaintiff and the second Respondent is the original second defendant. 2. The first Respondent filed a suit for declaration and possession against the Appellant and the second Respondent. The case made out by the first Respondent is that he was having 1/2 share in the suit land bearing Gat No.351 having area of 21 ares situated at village Vengarul, Taluka Bhudargad District Kolhapur. According to his case, his father died in the year 1989 and thereafter, his name has been entered in the record of rights. It is stated that as the first Respondent was a minor, the name of the second Respondent was entered as his guardian. The first Respondent became major on 5th -2- February 1996. It is stated that the Appellant had filed R.C.S.No.64 of 1994 against the 1st Respondent-plaintiff and Sripati Kamble by describing the first Respondent as a major. It is the case of the first Respondent that as his date of birth is 5th February 1978, he was a minor on the date of institution of R.C.S.No.64 of 1994. It is contended that as the first Respondent was a minor at that time, the Appellant got the suit decreed ex parte. It is contended that the Appellant misled the court by falsely stating that father of the first Respondent and one Salubai sold the suit land to the Appellant on 3rd March 1976. It is contended that no such document was executed in favour of the Appellant. It is alleged that in the year 1995, the Appellant purchased one half share from the suit land from Sripati Kamble and thereafter he took forcible possession of the suit land. 3. The Appellant opposed the suit by filing the written statement. It was contended that the first Respondent was duly served with the summons of R.C.S.No.64 of 1994. It was pointed out that paternal uncle of the first Respondent was a party to the suit along with the first Respondent. It was contended that the first Respondent and his paternal uncle appeared in the suit by engaging the services of Shri S.D.Bhosle, Advocate. However, the written statement was not filed. The case of the Appellant is that the date of birth of the first Respondent was incorrectly stated as 5th February -3- 1978 and in fact the age of the first Respondent was 22 years at the relevant time. The trial court decreed the suit by holding that the first Respondent proved that the decree in R.C.S.No. 64 of 1994 was obtained by fraud and was not binding on him. By upholding the title of the first Respondent, the trial court passed a decree for possession. The said decree has been confirmed in Appeal by the District Court. 4. The submission of the learned counsel for the Appellant is that the first Respondent had contested the suit filed by the Appellant by engaging an Advocate. He submitted that in any event the decree passed in the earlier suit could not have been challenged by filing a separate suit. He submitted that there is no evidence on record to show that the date of birth of the first Respondent was 5th February 1978. He pointed out the relevant portion of the oral evidence. He submitted that in earlier suit an Advocate was representing the first Respondent along with his paternal uncle and if the first Respondent was a minor, an objection could have been raised by the Advocate. He submitted that the said objection was not raised. He submitted that the finding of the courts below on the issue regarding date of birth of the first Respondent is perverse. 5. I have carefully considered the submissions. Perusal of -4- the Judgments of the courts below show that the entire oral and documentary evidence has been appreciated by the courts below. The courts below have considered the evidence of the three witnesses examined by the Respondent no.1. The third witness Narayan was serving as a Clerk in the school in which the first Respondent had studied from 19th June 1991. His date of birth in the register is shown as 5th February 1978. The school leaving certificate of 1991 was also produced and date of birth is shown as 5th February 1978. The said record was prepared in the year 1991. The Appellate court found that the first Respondent produced an extract of birth register maintained by Gram Panchyat which showed that the date of birth of the first Respondent was 5th February 1978. However, the said certificate was got prepared on 7th November 1997. The Appellate court, however, relied upon the school leaving certificate and extract of the admission register of the school of the year 1991 and accepted the genuineness and correctness of the said documents. 6. Thus, a finding of fact has been recorded that the date of birth of the first Respondent was 5th February 1978. In the circumstances, the trial court came to the conclusion that R.C.S.No.64 of 1994 was filed by the Appellant by not disclosing the fact that the first Respondent was minor. As the first Respondent was a minor when the suit was filed, the court ought to have followed the mandatory procedure under -5- Order XXXII of the Code of Civil Procedure,1908. However, the court did not appoint any guardian to represent the minor. Therefore, the decree passed in the said suit filed is certainly a nullity being passed against a minor without complying with the mandatory statutory requirements and that is the precise finding recorded by the courts below. It is not possible to interfere with the concurrent findings of fact recorded by both the courts below. The decree in earlier suit was nullity. 7. After having heard the submissions and after perusing of the notes of evidence, I find that there is no substantial question of law involved in the Appeal and the same is accordingly dismissed with no order as to costs. JUDGE JUDGE JUDGE