1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Appeal from Order No.36 of 2005 01. Geetabai Madhavrao Kale Age 74 years, occup.Nil, R/of 1936, Rangar Lane, Sangamner. 02. Prabhakar Madhavrao Kale, age 53 years, occupation business, r/of 1936 Rangar Lane, Sangamner. 03. Shreeram Madhav Kale, age 43 years, occupation business, r/of 1936,Rangar lane, Sangamner,District Ahmednagar. 04. Mrs.Suvarna w/o Arun Zambre Appellants/ age 36 years, occup.household ori.opponent r/o Khatik Galli, Chandwad Nos.2,3,5 & Taluka Chandwad, Dist.Nasik 6. 2 versus 01. Anil Madhavrao Kale, age 50 years, occupation service resident of 2482, Pardeshpura, A/o Taluka Sangamner,Dist.Ahmednagar. 02. Tarabai w/o Chandrakant Bhambare, age 56 years, occup.household, r/of Shivaji Road, Shrirampur, District Ahmednagar. 03. Avinash Madhavrao Kale age 52 years, occup.service Respondents/ r/of Opp. Merchant Bank Resp.No.1 ori New Nagar Road, Sangamner, deft. no.4. Taluka Sangamner. Resp.No.2 ori. pltff. & Resp. No.3 ori.deft. No.3. ------ Shri V.J. Dixit, Advocate, for the appellants.Shri A.G.Dalal, Advocate, holding for Shri V.D.Salunke, Advocate for Respondents. 3 Coram: P.R. Borkar J. Date : July 21, 2009 ORAL JUDGMENT. 01. This Appeal is preferred by original Defendant Nos. 2,3,5 and 6, being aggrieved by the order dated 13.1.2005 whereby learned Civil Judge, Senior Division, Sangamner (Shri V.B.Kulkarni) has allowed review application No.1 of 2004 and set aside partly the judgment and decree passed by his predecessor (Shri S.Y.Ranpise) on 5.4.2002 in Special Civil Suit No.110 of 1998. By the said order dated 13.1.2005, learned Civil Judge framed two additional issues but maintained the findings on issues No. 1 to 3 recorded by his predecessor. 02. It is necessary to narrate here certain facts regarding which there is no dispute. Madhavrao Kale was the original owner of the suit properties. Partition and possession of said properties was claimed by plaintiff-respondent No.2. Admittedly, appellant No.1-original defendant no.2 was the widow of deceased Madhavrao Kale. Appellant Nos.2 and 3 and Respondent Nos. 1 and 3 are 4 the sons of deceased Madhavrao Kale. Appellant No. 4 and Respondent No.2 are the daughters of Madhavrao. Madhavrao died on 1.8.1988 leaving behind two properties i.e. house bearing City Survey No.2321 situated at Rangar Galli, Sangamner and shop premises bearing No.3759 at Bazar Peth, Sangamner. Learned Civil Judge, Senior Division who tried the suit originally, framed issues and recorded his findings thereon, which are as follows. (1) Whether plaintiff proves that In the Swamini General Stores is joint negative family business and she has share therein ? (2) Whether plaintiff proves that In the the turn over of Swamini General negative is Rs.1,80,000/= per year ? (3) Whether plaintiff proves her In the share of Rs.25,714/=in the income negative of store ? (4) Whether defendants 1,2 and 5 In the prove that defts.3 & 4 relinquish- negative ed their share in the suit proper- ties ? (5) What is the share of plaintiff? 1/7th (6) Is plaintiff entitled to relief As per claimed ? order below. (7) What order and decree ? As per final order 5 The learned Judge passed following final order. "1. Suit is hereby partly decreed. 2. The defendant nos.1, 2 and 5 shall pay Rs.35,714/= each to plaintiff and defendant nos.3 and 4, as the share, in the dwelling house in stead of making a division in that house. 3. The defendant no.1,2 and 5 shall pay the amount to the plaintiff and defendant nos. 3 and 4 within six months, from today. 4. If the defendant nos.1, 2 and 5 fails to pay the amount within the prescribed period, in that event the suit property 1A i.e. dwelling house, shall be put to auction and the sale proceeds shall be credited to each of the sharer according to the share, which is determined. 5. In the circumstances, parties to bear their own costs. 6. Preliminary decree be drawn accordingly." 6 03. After said decision on 5.4.2002, none of the parties preferred any appeal, but Anil Respondent No.1-defendant No.4, who is one of the sons of Madhavrao, filed review application No.1 of 2004 before the learned Civil Judge, Senior Division, Sangamner and the same came to be entertained. The grounds on which review was sought may be stated as below; (i) The suit premises were ancestral properties of the parties and while giving decision on 5.4.2002, the court overlooked the property bearing CTS No.759 situated at Bazar Galli, Sangamner and no decision whatsoever was given about the said property. (ii)Two shops i.e. `Swmani General Stores' and `Swamini Agencies' situated in the said Bazar Galli are wrongly considered by the court as common business run by same partnership firm. 7 (iii) The court relied upon provisions of Section 2 and 3 of the Partition Act, 1893. In fact, those were not the provisions applicable. Moreover, actual partition of property is a matter for executing court and not within jurisdiction of the court. 04. The learned Civil Judge, Senior Division, who reviewed the earlier judgment, observed in his order dated 13.1.2005 that before invoking powers under Sections 2 and 3 of the Partition Act, the parties were not put to notice that the court was going to invoke those provisions of law; that the necessary procedure was not followed; that there was no issue as to whether the property was impartible; no issue regarding actual price of the property was framed nor any of the parties applied before the court as a willing purchaser of the shares of others in the house property. It is also observed that none of the parties made any application on record showing their willingness to purchase or sell their share and that the Civil Judge who decided the matter finally on 5.4.2002 has fixed the value of the property at Rs.2.50 lacs and decided that the value of 1/7th share 8 of each sharer is Rs.35,714/= and odd and accordingly directed defendant Nos. 1, 2 and 5 to pay price of Rs.35,714/= to the plaintiff and defendant nos. 3 and 4 each as the price of their share in the dwelling house. Learned Judge while reviewing the earlier judgment has discussed provisions of Sections 2 and 3 of the Partition Act. He also recorded that there was no finding that the property is impartible and since this is a patent error apparent on the face of record committed by his predecessor, relying upon case of Moram Mar Basselious Catholieos and others vs. Most Rev.Mar.Poulose, AIR 1952 SC 526, he held that this aspect needs to be reviewed. Learned judge while reviewing the earlier judgment, also came to a conclusion that Order XX Rule 18 of the Code of Civil Procedure, 1908 was not considered by earlier court and earlier the court acted without jurisdiction. In this behalf, case of Niya Gopal Samanta vs. Pran Krishna Dau AIR 1952 Cal.893 was referred to. 05. Learned Judge while reviewing the order, further discussed that the parties have approached to the court with a case that the property was ancestral. He referred to city survey record of CTS NO.2321 at Exh.59 and 9 observed that it was a property which belonged to father of Madhavrao. He also referred to certain admissions by the parties and ultimately came to a conclusion that so far as ancestral property is concerned, the plaintiff should get 1/42th share and not 1/7th share. 06. Now, it is admitted position before me that so far as the shop premises are concerned, though it is not disputed that the plaintiff had some share therein. (whether by treating the said property as ancestral or self acquired property of Madhavrao) still no share was given to the plaintiff and there is no discussion as to why the said shop premises were not being partitioned. The learned Judge while reviewing the earlier order, framed following two issues in paragraph 15 of his judgment (i) Does plaintiff prove that the suit properties are ancestral properties. ? If yes, what shall be share of each claimant therein. (ii) Whether the suit properties are imparticable estates within the meaning of Sec.2 of Partition Act. If 10 yes, whether either of the party proposes to put their respective share in sale in favour of other-co-owner or co-parcener ? If yes, what shall be the order ? Ultimately, learned judge passed final order allowing the review petition which is quoted below. "1. Review petition is hereby allowed. 2. The judgment and decree passed in Special Civil Suit No.110/98 is hereby set aside. However, the findings of issue nos. 1 to 3 recorded therein shall remain in-tact. 3. The proceeding of Spl.Suit no. 110/98 be kept for immediate hearing in view of the review being allowed on the limited issues framed in para 15 of the judgment." 07. Heard Shri V.J. Dixit, learned Senior Counsel for appellants and Shri A.G. Dalal, Advocate, holding for Shri V.D.Salunke, 11 learned Advocate for respondent No.1. Both learned counsel have taken me through the entire record and more particularly the plaint, the judgment and the decree passed on 5.4.2002 in Special Suit No.110 of 1998, review petition No.1 of 2004, judgment in review petition and the provisions of law, namely, Sections 2, 3 and 4 of the Partition Act, 1893. My attention was also drawn to Order XX Rule 18 (2) of the Code of Civil Procedure, 1908 and Section 22 of the Hindu Succession Act, 1956. 08. After going through the judgment in Special Civil Suit No.110 of 1998 which was subject matter of the review petition and also the judgment in review petition, one thing is clear that so far as the shop premises bearing CTS No. 759 situated at Bazar Peth, Sangamner, is concerned, the court which decided the suit earlier, was completely silent about that property. In fact that shop was just forgotten and it cannot be said that the decree regarding shop premises was refused merely because it was not adverted to. It is no doubt discussed that the business run in the shop premises is not a joint family business; the same was not the ancestral 12 business and therefore the plaintiff has no share therein, but there is no denial that the said property bearing CTS No.759 situated at Bazar Peth, Sangamaner, was property purchased by Madhavrao as can be seen from the city survey record at Exh.62. Only property which was inherited is house bearing No.2321 situated at Rangargalli. Admittedly, it is a small house admeasuring 103.7 square meters. It is not a case of anybody that this property was a source of income. In fact, the parties and more particularly the defendants have made out a case that the said house is not partible and, therefore, it should not be actually partitioned for the purpose of allotting plaintiff's share therein. According to defendants, plaintiff should be given price in lieu of his share in the said house. In this behalf, I may refer to paragraph 15 of the written statement filed by Defendant Nos.1,2 and 5. 09. So far as directions given by the learned Judge to Defendant Nos.1,2 and 5 while deciding the suit initially, namely, to pay Rs.35,714/= to each the plaintiff and Defendant Nos. 3 and 4 are concerned, it appears that without notice to the parties 13 the court proceeded to consider the case with reference to Sections 2 and 3 of the Partition Act and without there being issue to that effect. In my opinion, this aspect was decided in judgment and order dated 5.4.2002, without drawing attention of the parties thereto. 10. After considering the submissions advanced before me by the learned counsel for respective parties and after going through the evidence on record, I am of the opinion that it was not necessary to reopen the matter for hearing on any particular issue. There is sufficient evidence led by parties on the issues framed. So far as issue No.1 framed by judge reviewing the judgment is concerned, there was sufficient material on record and the learned judge reviewing the earlier judgment and order, could have decided the issue in the review application itself and determined the shares of the parties. So far as issue no. 2 is concerned, only after shares are determined and preliminary decree is passed, the said issue could have been decided in final decree proceedings. 11. In the facts and circumstances of the 14 case, the order dated 13.1.2005 passed in review application No.1 of 2004 is modified and substituted by following order. Decree passed on 13.1.2005 by learned trial court in Special Civil Suit No.110 of 1998 is hereby set aside. The findings of the court on issue Nos. 1 to 3 recorded by learned Civil Judge, Senior Division, Sangamber (Shri S.Y.Ranpise) are hereby maintained. The learned Civil Judge is directed to hear both the parties on following issues. (1) Whether both or either of the suit properties are/is the ancestral properties or separate property of deceased Madhavrao Kale ? (2) What are the shares of the parties in the suit properties ? After deciding above two issues, preliminary decree be drawn up and remaining issues, whether there should partition or recourse to Section 22 of the Hindu Succession Act or Sections 2, 3 and 4 of the Partition Act or Order XX Rule 18 of the Civil Procedure 15 Code, shall be decided in the final decree proceedings. 12. Appeal from Order is accordingly allowed. The learned trial judge shall decide aforesaid two issues on their own merits uninfluenced by observations in this judgment and order. pnd/ao36.05 (P.R.BORKAR, J.)