19cas997-08-ca739-06.sxw 1 spb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 997 OF 2008 IN SECOND APPEAL NO. 674 OF 2008 Shri Kantilal Govind Kayastha ... Applicant. V/s. Shri Murlidhar Govind Kayastha & Ors. ... Respondents. --- WITH CIVIL APPLICATION NO. 739 OF 2006 IN SECOND APPEAL NO. 499 OF 2006 Shri Narendra Laxman Kayastha ... Applicant. V/s. Shri Murlidhar Govind Kayastha & Ors. ... Respondents. --- Mr. R. D. Suryawanshi for the Applicant in C.A. 997/2008 and for Respondents in C.A. No. 739/2006. Mr. P.N.Joshi for Respondent No.1 in both C.As. Mr. S.M.Sabrad for Respondent No. 7 in C.A. 997/2008 and for Applicant in C.A. No. 739/2006. --- CORAM:- G.S. GODBOLE, J. DATED :- 29TH SEPTEMBER, 2011. P.C. : 1 Heard Mr. R.D.Suryawanshi for the Applicant/Appellant and Mr. 19cas997-08-ca739-06.sxw 2 P.N.Joshi for Respondent No.1 and Mr. Suresh Sabrad for Respondent No. 7 in C.A. No. 997/2008. 2 Heard Mr. Suresh Sabrad for the Applicant in C.A.No. 739 /2006 and Mr. P.N. Joshi for Respondent No. 1 in C.A. 739/2006 and Mr. R.D.Suryavanshi for Respondent No. 14 in C.A. No. 739 of 2006. 3 C.A. No. 997 of 2008 is on Board. Respondent Nos. 1 to 7, 8 to 10, 12 to 14 and 17 in that C.A. are duly served. Respondent Nos. 5,11,15 and 16, namely Tarabai Kayastha, Suvarna Kayastha, Shekhar Vishwanath Kayastha and Manisha Kayastha respectively remained to be served in C.A. No. 997/2008. 4 C.A. No. 739 of 2006 is actually on Board but the Board wrongly shows C.A. No. 241/2009 to be on Board, which was filed for restoration of C.A. No. 739/2006 and was allowed by Justice R.V.More by order dated 30th June, 2011. For the reasons indicated hereinafter the C.A. No. 739/2006 is also taken up on Board alongwith C.A. No. 997/2008. 5 Pursuant to the orders dated 7th July, 2011 as corrected by order dated 19cas997-08-ca739-06.sxw 3 18th July, 2011 and order dated 18th August, 2011 passed in C.A. No. 739/2006, all the Respondents therein except the Respondent Nos. 2 and 6 are to be served and a notice on Respondent No.3 has been returned unserved with remark “unclaimed”. 6 Respondent No.5, 11, 15 and 16 in C.A. No. 997/2008 are Respondent Nos. 11,13, 6 and 7 respectively in C.A.Nos. 739/2006 and they have been duly served in C.A. No. 739/2006 and in these circumstances service in C.A. No. 997/2008 is deemed to be complete and for the same reasons the service in C.A. No. 739/2006 is also deemed to be complete even though the notices were issued in this Civil Application to the Respondent Nos.2 and 6 namely, Ramesh Bhiva Kayastha and Shekhar Vishwanath Kayastha. Thus the only person who is not served is Shekhar Vishwanath Kayastha, who is Respondent No. 15 in C.A. 997/2008 and Respondent No.6 in C.A. No. 739/2006. The said Shekhar Vishwanath Kayastha was original Defendant No. 15 in the Trial Court and original Respondent No.6 in Civil Appeal No. 24 of 2003 filed in the District Court and it is obvious that he had not challenged the Decree for partition and separate possession. In this view of the matter, I have taken up both the Civil Applications for hearing together. 19cas997-08-ca739-06.sxw 4 7 Respondent No.1 had filed RCS NO. 32 of 1999 for partition and separate possession in the court of learned Joint Civil Judge (J.D.), Niphad which had been Decreed on 29.11.2002 by the learned Jt.Civil Judge J.D., Niphad and 3/14th share of the Respondent No.1 Plaintiff was directed to be separated and partitioned by metes and bounds. Accordingly by this order, the original Defendant Nos. 1, 2 and 4 to 10 filed C.A. No. 24/2003 in the District Court which has been partly allowed on 1.2.2006 by the learned Additional District Judge, Niphad and without modifying or reducing the share of the Plaintiff which is 3/14th different shares have been allotted to Defendants Nos. 1 to 17. Aggrieved by this Decree, the original Defendant Nos. 6 to 9 have filed S.A. No. 499 of 2006 in which the C.A. No. 739/2006 has been filed for stay. The Second Appeal is admitted by order dated 6th February, 2007 by framing question of law and on the same date in C.A. No. 739/2006 the following order was passed :- Heard the learned counsel for the parties. Rule. Returnable in eight weeks. Insofar as execution of the impugned decree is concerned, Mr Sabrad, learned counsel for the appellant without prejudice to his rights and contentions, fairly stated that 19cas997-08-ca739-06.sxw 5 except house no.223, he has no objection if all other properties are partitioned and given in possession of to the respective share-holders. He further submits that even in respect of house no.223, except 340 sq.ft area in possession of the appellants thereof, the remaining portion may also be partitioned as per the decree. In view thereof, except 340 sq.ft of house no.223, the executing authority shall proceed to execute the impugned decree of partition. In addition to the court notice, the applicants are directed to give advocate’s notice to the unserved respondents either personally or through R.P.A.D./speed post/e-mail/fax and file an affidavit of service before the returnable date. 8 Thereafter, the original Defendant No.11 Kantilal has filed Second Appeal No. 674/2008 with C.A. No. 997/2008. The Second Appeal is admitted on 11th December, 2008 and in C.A. No. 997/2008 an ad-interim order in terms of prayer clause (b) has been granted whereby the Decrees passed by the Trial Court and the District Courts have been stayed. 9 Mr. Joshi, Advocate appears for the original Plaintiff. He has opposed both the Applications vehemently and relied upon Affidavit-In- 19cas997-08-ca739-06.sxw 6 Reply filed in C.A. No. 997/2008. It is his contention that C.A. No. 997/2008 in Second Appeal No. 674 of 2008 has been filed only as an after thought attempt and only because original Defendant Nos. 6 to 9 have filed the S.A. No. 499/2006 and obtained an ad-interim order dated 6.2.2007 and hence, the entire Decree need not be stayed and at the highest the Decree can be stayed only in respect of the House No. 223. 10 Mr. Sabrad appearing for the Applicants in C.A. NO. 739/2006 submits that the ad-interim order dated 6.2.2007 should be confirmed and he has no objection if the partition proceedings go on in respect of all the remaining properties and remaining portion of house no. 223 except the area of admeasuring 340 sq. ft. in possession of the Applicants. Mr. Suryawanshi, Advocate for the Applicant opposes this prayer of Mr. Sabrad. Mr. Joshi, Advocate for the Respondent No.1 in both the C.As. requested that both the Second Appeals should be taken up for hearing immediately alongwith the Civil Applications. 11 I have considered the rival submissions. The Second Appeals have been admitted. In suits for partition and separate possession it is well established practice followed by this court for several years that normally 19cas997-08-ca739-06.sxw 7 interim order which is passed is that the partition proceedings must go on but the actual physical possession must not be handed over. The partition proceedings normally take several years for decision and particularly when there are many parties and many properties in respect of agricultural lands even for the partition as suggested by the Collector or by his subordinate under section 54 of the Code of Civil Procedure, 1908, the Appeals and Revisions are filed under the provisions of MLR Code, 1966 it takes substantial time. Similarly, the Decree for possession in respect of the immovable properties like house etc.. is executed through the court where the court appoints Court Commissioner and this process takes long time for measurement of the property, valuation, suggestion for partition and objections to the report of the Court Commissioner etc.. In view of this, the interim relief granted in C.A. No. 997/2008 cannot be allowed to be continued. Similarly, the ad-interim order dated 6th February, 2007 passed in C.A. 739/2006 which grants stay to the Decree for partition only in respect of one portion out of one of the house properties cannot also be confirmed. The interest of the parties will be sufficiently protected by directing that none of the parties shall create any third party rights or interest of whatsoever nature without availing a specific leave from this court in that regard. It will have also to be clarified that if it is the case of 19cas997-08-ca739-06.sxw 8 the Plaintiff -Respondent No.1 that on account of having large amount of income out of the properties, the interest of the Plaintiff should be protected by passing appropriate orders for appointment of the Court Receiver or for any other directions regarding maintenance / deposit of income etc. not only the Plaintiff -Respondent No.1 but any other party would also be at liberty to file an appropriate Civil Application/s for such relief/s and as and when such an Application/s is /are filed the same will have to be heard and decided on its own merits. 12 Hence, I pass following order : a) The Decree for partition and separate possession passed in CRA No.32/ 1999 by the learned Jt. Civil Judge (J.D.), Niphad on 29.11.2002 as modified by the Judgment and Decree dated 01.02.2006 passed by the learned Additional District Judge, Niphad in Civil Appeal No. 24 of 2003 is not stayed during the pendency of the Second Appeals. b) The partition proceedings can go on in all respects but actual physical possession shall not be handed over. 19cas997-08-ca739-06.sxw 9 c) The Executing Court can proceed with the execution proceedings in all respects and in respect of the house properties by the appointment of the Court Commissioner, for suggestion about partition, the parties can file objections to the Report of the Court Commissioner. The objections can be decided. The partition proceedings till the passing of the order for actual delivery of possession can also go on but the actual delivery of the possession will not be effected. d) In so far as the Landed property is concerned, precepts shall be sent to the Collector. The Collector or his subordinate can proceed to prepare partition list, after measurements if necessary etc. and can pass even final order in that regard. Aggrieved party can file Appeals or Revisions under the MLR Code, 1966. Such Appeals and Revision can also be heard and decided. However, actual possession shall not be handed over. e) All parties are restrained by an order of injunction that none of them will part with possession of and/or create any 19cas997-08-ca739-06.sxw 10 third party right or interest in respect of the property in question in any manner. No one shall create any mortgage or execute any Sale Deed in favour of any party or any agreement of the aforesaid nature whatsoever till further orders and until leave of this court is obtained in that regard. If any such Application is filed, the same shall be heard and decided on its own merits. f) The original Plaintiff/Respondent No.1 or any other party if it so desires is at liberty to file an appropriate Application for interim reliefs and for appointment of the Court Receiver and / or for direction for deposit of the income and or maintenance etc. and as and when such an Application is filed, the same shall also be decided on its own merits. g) Since this order is being passed without a proper representations of original Defendant No. 6. Shekhar Vishwanath Kayastha liberty is granted to the said Shekhar V. Kayastha for filing Application for modification of this order by showing prejudice caused to him in the context of the fact 19cas997-08-ca739-06.sxw 11 that he had never challenged the Decree for partition and separate possession passed either by the Trial Court or District Court nor has he ever filed any Application for vacating the interim relief granted in C.A. No. 997/2008 or in C.A. No. 739/2006. h) Request of Mr. Joshi for fixing the Appeals for final hearing cannot be granted at this stage as Appeals are not ripe for final hearing. The Respondent No.1/Plaintiff or any other party is at liberty to file Application for fixing date of final hearing to fix the date of hearing in both the Second Appeals and such application will be considered on its own merits. i) Both the Civil Applications are disposed off with no order as to costs. [G. S. GODBOLE, J.]