1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 577 OF 2007 Govind Bhagoji Kamble Since deceased his Legal Representatives (A) Ananda Govind Kamble & ors. : Appellants versus Sadu Bapu Kamble 1A Since deceased his legal Representatives Maruti Sadashiv Kamble & ors. : Respondents. Shri. Suresh Bhosale for the Appellants. Shri. S.R.Ganbavale for Respondent Nos.1A to 1I, 2 and 3. CORAM : R.M.SAVANT, J. DATED : August 20, 2008 P.C. 1. By the above Second Appeal, the Appellants take exception to the Judgment and Decree dated 27.06.2007 passed by the learned District Judge-3 Kolhapur in Regular Civil Appeal No.203 of 2006 by which the Judgment and Decree dated 30.06.2004 passed by the learned Civil Judge, Junior Division, Radhanagari in Regular Civil Suit No.123 of 1980 came to be confirmed. 2 2. The Appellants herein, who are the original Defendants and the Respondents, who are the original Plaintiffs claim their lineage to a common ancestor viz. Babu @ Babana. The said Babu @ Babana had four sons viz. Bapu, Balu, Appa and Bhagoji, who are all dead. Karta of the family was Bhagoji the son of the said Babu @ Babana. On the Defendants' denying them their share, the Respondents/Plaintiffs filed a suit, being Regular Civil Suit No.123 of 1980 for partition and possession of the properties mentioned in the plaint claiming their share in the suit properties. From the point of present Second Appeal it would be pertinent to note that the original Defendant Nos.7, 8 and 9 filed their written statements. The Defendant Nos. 7 and 9 filed a common written statement accepting the claim of the Plaintiffs. The Defendant No.8 filed his separate written statement likewise i.e. accepting the claim of the Plaintiffs. 3. The parties went to trial and on the basis of the material that was on record, the said Regular Civil Suit No.123 of 1980 came to be decreed on 30.07.1993. During the pendency of the said suit, the Defendant Nos.7 and 9 expired. However, their legal heirs were 3 not brought on record. It appears that thereafter the proceedings had a chequered history inasmuch as the Defendant Nos.1 to 6 to the said suit challenged the decree by filing an appeal being Regular Civil Appeal No.456 of 1993. The said Regular Civil Appeal came to be dismissed for default as the said Defendants Nos.1 to 6, who were the Appellants, filed no instructions purshis. The said Defendants thereafter filed Second Appeal No.755 of 2004 challenging the order dated 14.09.1999 passed in Regular Civil Appeal No.456 of 1993. This Court by its order dated 02.08.2004 remanded the said Appeal back to the Lower Appellate Court for a de novo consideration. Thereafter amendment was carried out in the said Regular Civil Appeal No.456 of 1993 by bringing the legal heirs of the Defendant Nos.7 and 9 on record. The legal heirs of the Defendant Nos.7 and 9 were accordingly arrayed as Respondent Nos. 4 to 6 in the cause title of the said Appeal. The notices were issued to the said Respondent Nos.4 to 6. On remand the lower Appellate Court vide its judgment and order dated 29.12.2004 allowed the said Appeal and set aside the decree of the trial Court dated 30.07.1993 and remanded the matter back to the trial Court for a decision afresh to be decided by 4 the end of April 2005. 4. On remand to the trial Court, an Application Exhibit 201 was filed by the Defendant Nos.1 to 9 for restoration and possession. The said application came to be rejected by the trial Court by its order dated 5.7.205 resulting in Defendants filing Regular Civil Appeal No.265 of 2005. The said Appeal came to be allowed by order dated 31.1.2006 and the Plaintiffs were directed to restore the possession of the Defendant Nos.1 to 9. In the mean time, the notices in the said suit came to be issued to the Defendant Nos.7(1) to 7(5) and 8, 9(A) to 9(C). The said Defendants filed written statements. The said written statements were taken on record. 5. Aggrieved by the order dated 29.12.2004 passed in Regular Civil appeal No.456 of 1993 and the order dated 31.1.2006 passed in Regular Civil Appeal No.265 of 2005, the Plaintiffs filed Second Appeal No.455 of 2006. The said Second Appeal was dismissed by this Court by order dated 25.4.2006. 5 6. The Plaintiffs, thereafter moved an application in the trial Court invoking Section 151 and Order XXII Rule 4 of the Code of Civil Procedure and contended that the legal heirs of the Defendant Nos.7 and 9 and the Defendant No.8 are not entitled to file fresh written statements as the original Defendant Nos.7, 8 and 9 had already filed their written statements in the said suit. The said application of the Plaintiffs was opposed by Defendant No.8 by filing Reply dated 8.6.2006 on the ground that as the matter was remanded back to the trial Court by the lower Appellate Court and on such remand the said Defendant Nos.7 to 9 are entitled to file their written statements. The said Defendant No.8 also questioned the written statements which were filed in the said suit and contended that the said defendants had never put their thumb impression on the said written statements. The trial Court considered the said application of the Plaintiffs and by its order dated 9.6.2006 allowed the said application and thereby de-recorded the fresh written statements of the Defendant Nos.7, 8 and 9 which were taken on record earlier. 7. Aggrieved by the said order dated 9.6.2006, the said 6 Defendant Nos.7 to 9 filed a writ petition in this Court being Writ Petition No.4276 of 2006. It appears that during pendency of the said writ petition, the trial Court in the light of the order passed by the lower Appellate Court remanding the matter back to it and expediting the suit, decided the said Regular Civil Suit No.123 of 1980 on 30.6.2006. 8. Aggrieved by the Judgment and Decree dated 30.6.2006 passed by the trial Court, the Defendants filed Regular Civil Appeal No.203 of 2006 in the Court of District Judge, Kolhapur. The said Appeal came to be dismissed by the lower Appellate Court by its judgment and order dated 27.6.2006 which has given rise to the filing of the present Second Appeal. 9. The main plank of the challenge of the Appellants in the above Second Appeal is that no proper opportunity has been given to the Defendant Nos.7to 9 in prosecuting the said suit inasmuch as, according to the said Defendants, the said Defendants have never endorsed the written statements filed in the said suit by putting their thumb impression. It is further the case of the defendants that a fraud 7 has been practiced on the said defendants. It is further the case of the defendants that once the trial Court having permitted the said defendants to file fresh written statements , it was not open for the trial Court to set aside the order accepting their written statements and taking them on record by passing an order de-recording the said written statements. 10. Per contra it is submitted on behalf of the Respondents herein who are the original Plaintiffs that the Defendant Nos.7to 9 having once filed their written statements, it was not open for them to file fresh written statements and take a different stand than one taken by the original Defendant Nos.7 to 9. It is further contended on behalf of the Respondents herein that it is only in the year 2006 when this Court remanded the matter back to the trial Court that the grievance of the nature that the said Defendants had never affixed their thumb impression on the said written statements was made for the first time. It was further contended that the record of the trial Court would indicate that the case of the defendant Nos.7to 9 that they were not served with the suit summons and they did not affix their thumb 8 impression on the written statement cannot be accepted. The learned counsel for the Respondents drew my attention to the Roznama of the said suit as well as the Bailiff Report to indicate that the Defendants have been served by the process known to law. In so far as the said controversy as regards the written statement filed by the Defendant Nos.7 to 9 is concerned, the Defendant No.8 has filed an affidavit in this Court stating that the suit summons was in fact not served upon him and he became aware of the decree passed in 1993 for the first time in the year 199. 11. It would be pertinent to note that the Defendant Nos.8and 9 had filed their written statements on 24.11.1980 and the defendant No.7 had filed his written statement on 28.7.1981. The defendant No.7 has expired on 1.10.1985 and the Defendant No.9 has expired on 17.9.1982 i.e. Much after the written statements filed by the Defendant Nos.7, 8 and 9. 12. It would be pertinent to note that the Defendant No.8 has 9 filed his written statement on 24.11.1980. The Defendant Nos.7 and 9 have expired on 1.10.1985 and 17.9.1982. The Defendant No.8 is yet alive and pertinently till the year 2006 or even prior thereto when the matter were going back and forth between the trial Court and the lower Appellate Court did not make any grievance about the alleged forged written statements filed on behalf of the Defendants. It would be significant to note that the Roznama of the said suit dated 29.11.1980 indicates that the said Defendant Nos.7,8 and 9 were present in the Court on the said day. The record of the proceedings also indicates that the summons was served on the Defendant Nos.7,8 and 9. In respect of the Defendant No.7 the summons was received by Chamubai – his mother. It is impossible to accept the case of the Defendant No.8, who alleged that, he was not aware of the decree passed in 1993 till the year 1999 when the attachment of the suit properties, according to him, took place. In the context of bitter litigation that is being fought between the parties since last 28 years, the said case of the Defendant No.8 cannot be accepted. 13. The lower Appellate Court relied upon the judgment of the 10 Apex Court in the case of United India Insurance Co. Ltd. V/z. Rajendra Singh and other reported in AIR 2000 SC 1165 wherein it has been held by the Apex Court that :- “No court or tribunal can be regarded as Powerless to recall its own order if is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim.”, The lower Appellate court also observed that the legal representatives cannot have a better right than the party whom they represent and in whose place they have come in the litigation. The lower Appellate Court, therefore, held that the order of the trial Court as regards Exhibit 201 de-recording the written statements of the said Defendant Nos.7, 8 and 9 could not be faulted with. 14. In so far as the aspect of partition is concerned though it was the case of the Defendants that some of the properties were self- acquired properties of Bhagoji, no evidence was led in that behalf. Both the Courts below have, therefore, concurrently held that the suit 11 properties were the ancestral properties and the Plaintiffs were entitled to their share. Both the Courts below have, therefore, reached a finding of fact as regards the said properties being the ancestral properties on the basis of the material on record. 15. In my view, on both counts, the above Second Appeal does not involve any substantial question of law and is accordingly dismissed. 16. In view of dismissal of the Second Appeal, the Civil Application does not survive and the same is disposed of as such. 17. It appears that during pendency of the Regular Civil Appeal No.456 of 1993, the Plaintiffs came into possession of the properties which are also presently in their possession pursuant to the execution of the decree by the Revenue Authorities. The said possession was made subject to the result of the said Appeal. However, in the said Appeal no directions were passed as regards the possession of the Plaintiffs. The Plaintiffs have continued to be in possession of their 12 share to which they have been held entitled in the said suit. [R.M.SAVANT, J]