1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR APPEAL AGAINST ORDER NO. 126 OF 2009 Charandas Mohana Nagrale Vs. Manohar Sadashiv Jivne ------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. ------------------------------------------------------------------------------------- Mr. S. R. Deshpande Adv for appellant. Mr. M. I. Dhatrak Adv for respondents. CORAM: K. U. CHANDIWAL J. DATED: 17 th JUNE , 2010. Heard. In a suit for possession being Regular Civil Suit No. 12 of 1989, the plaintiff succeeded vide judgment and decree dated 30.04.1997 directing the defendant to handover the possession of the property referred in the suit. The defeated defendant preferred appeal being Appeal No. 71 of 2003 before the Additional District Judge Kelapur. In the said proceedings, below Ex. 10 an 2 application in terms of Order 41 Rule 27 of Civil Procedure Code was moved seeking to file documents which comprises of copy of order passed by the Tahsildar Ghatanji. 2. Learned Judge allowed the application to produce the documents on record. He exercised his powers also to produce documents by the counsel representing original defendant in the pending appeal. The other aspect which is a basic subject of challenge is the order of the First Appellate Court dated 08.07.2009, whereby the learned Additional District Judge remanded the matter to the Court of first instance. Such remand is questioned by the original plaintiff in the present Appeal Against Order. Since in the Appeal Against Order the order of remand is questioned, the principle enunciated in Section 100 of the Civil Procedure Code will also be applicable if dealt with. After hearing the parties, the following could be the substantial question of law between the parties: 3 Whether in a suit for possession by a co- owner, was it imperative for the plaintiff to have added his other co-owners/co-sharers and such suit was not maintainable? 3. The substantial question of law, after hearing the parties at length is answered. 4. The learned Judge was certainly wrong in holding that all co-owners are necessary parties and thereby remanded the matter for re-trial. 5. The controversy between the parties, about inter-se relations need not be traveled to. After demise of Laxman his widow Baynabai became the owner of the suit land and after her demise the plaintiff became the owner of the suit land. He claimed to be sole legal representative of Laxman and Baynabai. However, it was found that apart from plaintiff there were other legal representatives. Be that as it may, it was not open for the defendant to 4 stake in his challenge as it was a suit relating to possession of the property held by the parents of the plaintiff. 6. During the course of submission it was canvassed, earlier the property was in possession of the mother of the defendant. However during the course it also revealed that the property at the time of lodging the proceedings was in possession of the defendant and consequently the plaintiff was seeking possession from an unauthorised occupant. The status of the defendant to be a tenant, if it is so, the defendant can address the same before the competent authority. For the present I do not see there was any error on the part of the learned Judge of the Court of first instance in decreeing suit. Learned First Appellate Court certainly did not take into consideration the provisions of Order 41 Rule 27 of the Civil Procedure Code while entertaining the document and secondly without analysing the legal position correctly, has remanded the matter back. 5 Appeal Against Order No. 126 of 2009 is allowed. The order of the First Appellate Court under challenge is set aside. No costs. Naturally the order of trial Court is confirmed. Heard. Order is stayed for 8 weeks. Civil Application is disposed of. JUDGE svk