1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.789 of 2002 Prakash Rameshlal Desarda, age 28 years, occupation: agriculture r/of Shirur, petitioner/orig. District Beed. appellant-third party. versus Ravindra Trimbak Dagde, age 44 years, occupation agriculture, r/of Shirur District Beed, present address given in the presentation form i.e. Respondent/ Amruta Sadi Centre, original Ghas Galli, Ahmednagar. applicant. -------- Shri Satyajeet S. Bora, Advocate, for petitioner. Shri Santosh G.Chapalgaon,Advocate for Respondent. Coram: P.R. Borkar J. Date : Sept.08, 2009. ORAL JUDGMENT 1. This Civil Revision Application is filed being aggrieved by the order passed in 2 Miscellaneous Civil Appeal No.21 of 2001 decided on 2.2.2002 by the learned II Adhoc Additional District Judge, Beed, thereby dismissing the said appeal and also rejecting application Exh.16. 2. Briefly stated, one Sulochana Krishnanath Rasane filed R.C.S. no.40 of 1979 in the court of Civil Judge, Junior Division, Patoda against present Respondent Ravindra and others for possession of suit lands survey Nos. 224 and 225 situated at Shirur, District Beed. That suit was decreed on 7.3.1980 and Sulochana was put in possession of the suit lands in execution proceedings bearing Regular Darkhast No.26 of 1980. The date of delivery of possession is 22.4.1980. On 13.5.1980 Sulochanabai sold the said lands to Prakash and Bharat both sons of Premchand Oswal under registered sale-deed for Rs. 17,000/=. On 2.1.1995, Oswal brothers sold 3 hectare 93 R. portion from the suit lands to present applicant Prakash and his parents for Rs. 62,000/=. Mutation was carried out regarding the said sale. 3. It is further stated that the later on the applicant learnt that certain proceedings were pending and therefore he made an application Exh. 77 for joining him as party in Miscellaneous Civil Application No.8 of 1980 in Regular Darkhast No. 26 of 1980 which was execution proceedings 3 initiated by Sulochanabai. However, his application for impleadment as a party came to be rejected by the court. Therefore, Civil Revision Application No.1187 of 1999 was filed by present petitioner against present Respondent Ravindra as also Sulochanabai (since deceased) through her heirs Sow. Harbibai, Sow. Gulab and Sow. Jayashree. That Civil Revision Application was allowed by order passed on 15.2.2001. The copy of the said order is enclosed at Exhibit E with present Civil Revision Application. The order dated 15.2.2001 reads:- ". The present petitioner had filed an application below Exh.77 in Misc. Civil Application No.70/80 at Patoda, praying for impleading as non-applicant intervenor under Order 1 Rule 10 of the C.P.C. By the impugned order dated 29.6.1999 the said application has been rejected. During the pendency of this Revision Application, Misc. Application No.8/80 has been decided by the trial court finally and therefore, the petitioner will have to challenge that order. Such a challenge cannot be raised unless his application at Exh.77 was allowed by the Court. Pursuant to the decree passed the 4 property was handed over to the decree holder and thereafter, the decree holder has alienated the property in favour of the present petitioner. The proceedings in Misc. Civil Application No.8/80 certainly touch upon the petitioner's right as the transferee of the suit property and therefore, it would have been appropriate to allow his application and contest the proceedings in Misc. Civil Application No.8/80. The learned Judge of the trial Court fell in error in rejecting the application. In the result, the Revision is allowed, and the impugned order dated 29.6.1999 passed below Exh.77 is hereby quashed and set aside. The said application at Exh.77 stands allowed. Consequently, the petitioner may approach the lower appellate court in appropriate proceedings alongwith the stay petition if so desired. Interim order passed by this Court on 17.11.1999 shall continue to operate for a further period of eight weeks." 4. As observed by this court since Miscellaneous Application No.8 of 1980 has already been decided, the decision was challenged by present revision petitioner by filing Misc. Civil Appeal No.21 of 2001 and the same came to be heard 5 and dismissed by learned II Adhoc Additional Sessions Judge, Beed on 2.2.2002. At the end of para 11 of the order, it is observed that the present Respondent had filed Miscellaneous Civil Application No.8 of 1980 under Order 21 Rule 99 of C.P.C. for recovery of possession of suit lands and in that application he had joined only Sulochanabai as party and after her death her legal representatives as parties. 5. Heard Shri S.S. Bora, learned Advocate for revision applicant and Shri S.G. Chapalgaonkar, learned Advocate for Respondent. 6. After hearing both sides, it is clear that three dates are important. On 22.4.1980, possession of suit lands was delivered to Sulochanabai in Regular Darkhast No.26 of 1980. Thereafter on 13.5.1980, she sold suit property to Prakash and Bharat both sons of Premchand Oswal. Then on 19.5.1980, present Respondent Ravindra filed application (M.A. No.8/1980) under Order 21, Rule 99 objecting to his dispossession from the property and for getting back possession. So, on the date of filing Misc. Application No.8 of 1980 by present Respondent, Sulochanabai was not the owner or possessor of the suit lands. Oswal brothers were the owners and, therefore, in the application Oswal brothers ought to have been made parties. But, it appears from the record produced 6 before me that only Sulochanabai was made party and after her death, her heirs were brought on record. However, the said legal heirs of Sulochanabai were also obviously not the owners or possessors of the suit land. In the circumstances, there was no proper hearing. Misc. Application No.8 of 1980 came to be decided exparte as the owner and possessor of the lands as on 19.5.1980 was not represented before the court. 7. In this view of the matter, in my opinion, learned II Adhoc Additional District Judge committed error in not allowing Misc. Civil Appeal No.21 of 2001. She ought to have allowed that appeal and remanded Misc. Application No.8 of 1980 for hearing after allowing present applicant to be added as a party. 8. This civil revision application is, therefore, allowed. The order passed by II Adhoc Additional District Judge, Beed in Miscellaneous Civil Appeal No.21 of 2001 dated 2.2.2002 is hereby set aside. The said Misc. Civil Appeal No.21 of 2001 stands allowed. The order passed on 18.1.2001 by learned Civil Judge, Junior Division, Patoda, in Miscellaneous Application No. 8 of 1980 is also set aside and the said application is remanded back to the Civil Judge, Junior Division, Patoda with direction that he shall allowed the present revision applicant Prakash Rameshlal 7 Desdarda to be added as party-respondent-opponent and then hear said Misc. Application No.8 of 1980 under Order 21 Rule 99 of C.P.C. afresh and decide the same in accordance with law as early as possible. 9. At the request of learned Advocates for the parties before me, it is directed that the parties shall appear before the Court of Civil Judge, Junior Division, Patoda on 12.10.2009. Registry to communicate this order immediately to the trial court. pnd/cra789.02 (P.R.BORKAR, J.)