1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 40 OF 1989 Kashibai w/o Vishwanath Dushing age major, occupation : agril. r/of Wari, Taluka : Kopargaon, Appellant/ District Ahmednagar. ori.Deft.No.1 versus Bajubai w/o Laxman Ghanghav, age 75 years, (deceased) through her legaty and L.R. Shantqabai Gangadhar Nile, age 50 years, occup.agril. r/of Bhojade, Tq. Kopargaon, Respondent/ District Ahmednagar. orig.pltff. ------------------------------------------------------ Shri S.S.Kulkarni, Advocate, holding for Shri S. D. Kulkarni Advocate for the appellant. Shri C. V. Korhalkar, Advocate for the Respondent. ------------------------------------------------------ Coram : P.R. Borkar, J. Date : April 5, 2010 ORAL JUDGMENT 01. This second appeal is filed by original defendant No.1 Kashibai, being aggrieved by the judgment and decree passed by the learned II Extra 2 Assistant Judge,Ahmednagar in Regular Civil Appeal No.337 of 1981 decided on 20.6.1984 thereby setting aside the judgment and decree passed by the learned Joint Civil Judge, Junior Division, Kopargaon in Regular Civil Suit No.366 of 1976 decided on 14.7.1980 thereby dismissing the suit. It is held by the learned First Appellate Court that the deceased Bajubai (original plaintiff) and after her death Shantabai (present respondent) were the exclusive owners of the suit property and consequently they are entitled to decree of perpetual injunction restraining present appellant Kashibai (original defendant No.1) from disturbing possession of the respondent Shantabai. 02. Peculiar facts giving rise to this second appeal are that Bajubai, who was admittedly mother of present appellant Kashibai and respondent Shantabai, had filed suit for declaration of her exclusive ownership and perpetual injunction against her said two daughters claiming that the suit property which is Gat No.383 (survey No. 122/2-C, 122/2-B K) situated at village 3 Bhojade, Taluka Kopargaon, District Ahmednagar, was her husband Laxman's ownership. After death of husband, Bajubai alone inherited and was in possession of the property. Her both daughters Kashibai and Shantabai (present appellant and respondent respectively) were disturbing her possession and were attempting to change the property in their names. Plaintiff also stated that she had not executed any document in favour of either of the two daughters and her possession was being disturbed and, therefore, she filed suit for perpetual injunction against both the daughters. 03. Defendant No. 1 Kashibai (present appellant) filed written statement at Exhibit 20 and challenged the suit. She denied exclusive ownership of her mother Bajubai. According to her, along with the plaintiff Bajubai, defendants had also become co-owners as the property was of their father and since the defendants are co- owners, no injunction can be issued against them Other averments are also made with which we are 4 not concerned at this stage. 04. Plaintiff Bajubai entered into witness box and examined herself at Exh.58. Defendants did not lead any oral evidence. The trial court came to the conclusion that the plaintiff failed to prove her exclusive ownership. In para.9 of its judgment, the trial court observed that originally property belonged to Laxman who died in 1957 and thereafter his wife (plaintiff Bajubai) claimed to be exclusive owner.It is held that she was not the sole owner and that the defts. also became co- owners as heirs of deceased Laxman. So, the suit was dismissed. 05. Pending the appeal in the District Court, original plaintiff Bajubai expired. Defendant No.1 Kashibai, who had filed written statement contesting the suit, was shown as respondent and original defendant No.2 Shantabai,against whom plaintiff Bajubai had sought declaration of title and injunction and whose title was denied, requested the court to add her as heir of deceased 5 Bajubai. The District Court appears to have held enquiry under Order XXII Rule 5 of the Code of Civil Procedure. Ultimately, original defendant No.2 Shantabai was allowed to be transposed as the appellant in the appeal before District Court and the matter proceeded further. Original suit was thus changed into the suit for perpetual injunction between original defendant No. 2 and 1. As stated earlier, the District Court set aside the decree passed by the trial court and decreed the suit in favour of the plaintiff. 06. This second appeal is admitted on on 24.2.1986 on following substantial question of law. "Whether the appellant (in the District Court) is entitled to relief as heir of deceased plaintiff ?" Thus, the second appeal is admitted on the substantial question of law whether original defendant No.2 was entitled to continue suit filed by her mother against herself and her sister 6 for declaration of title and injunction, by transposing her as the plaintiff. 07. Without there being pleadings, various issues were considered by the District Court and the trial court after remand by District Court. It may be noted that as per the pleadings as they stand it is not a suit between appellant Kashibai and respondent Shantabai. Shantabai had not claimed any relief against her sister Kashibai. The plaint and written statement remained unamended till this date. So, naturally the issue raised by pleadings as those stand as on today, is whether Bajubai was entitled to declaration and injunction against her both daughters. 08. In my considered opinion, the District Court was completely in error in allowing transposition of original Defendant No.2 Shantabai as appellant in the appeal before District Court. It would be relevant to note that in fact, original suit was for same relief against both sisters. In absence of amendment to pleadings 7 there was no question of issuing injunction against appellant Kashibai at the behest of respondent Shantabai as both were original defendants. 09. In the peculiar facts and circumstances of the case, in my opinion, Dist.Court committed error in transposing original defendant No.2 Shantabai as appellant before the District Court and in continuing the appeal/suit on the issues which were not raised in the pleadings. 10. In the circumstances, second appeal is allowed. Original suit is dismissed as abated since original appellant before the District Court i.e. Bajubai had expired during pendency of appeal in the Dist. Court. The original cause of action did not survive after her death in the peculiar facts of the case. Her daughter-original defendant Shantabai against whom Bajubai had claimed injunction, could not have been transposed as appellant/plaintiff. It is, however, made clear that the present appellant Kashibai and respondent 8 Shantabai are at liberty to initiate appropriate proceedings and get their rights decided. It is further made clear that the findings recorded by the trial court (after remand) or the District court on various issues in present suit and appeal between appellant Kashibai and respondent Shantabai shall not operate as res-judicata. The order of the District Court is, accordingly set aside. The original suit disposed off as abated. Second Appeal disposed of. pnd/fa40.89 (P.R.BORKAR, J.)