1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 42 OF 2009 ALONGWITH CROSS OBJECTION (ST) NO. 20539 OF 2009 Shri Bhagwan Maruti Shinde ... Appellant v/s 1. Shri Vinayak Raghunath Shinde & ors.... Respondents Mr.Anilkumar Patil for the appellant. Mr.Sadashiv G. Deshmukh for the respondents. CORAM: SMT.NISHITA MHATRE, J. DATED: 7TH SEPTEMBER, 2009 P.C.: 1. The second appeal and cross-objections in the present second appeal are being considered together and are being disposed of together by consent at the stage of admission itself. 2. The appellant was defendant No.1 before the Trial Court, whereas the respondents were the plaintiffs. The suit property was partitioned in the year 1964 by Maruti Shinde 2 between his sons. The appellant claims that he purchased the suit property from one Smt.Muktabai and he is put in possession of that property on 16.8.1977. 3. Regular Civil Suit No. 379 of 1997 was filed by the plaintiffs in the Court of Civil Judge, Sr. Divn., Sangli. The suit was filed for an injunction and declaration that he was the owner of the suit property therein i.e. Gat No.485 admeasuring 1 Hectare 5 Ares. The suit was dismissed on 24.1.2003. While doing so, the Trial Court held that the plaintiff did not have an exclusive title to the suit property and that it was part of the Joint Hindu Family property owned by the father of the plaintiff and defendant No.1 along with their three brothers. Being aggrieved by the decision of the Trial Court, Regular Civil Appeal No.40 of 2003 was filed by the plaintiff before the District Judge, Sangli. Cross- objections were filed by defendant No.1 before the Appellate Court and he was aggrieved by certain findings of the Trail Court. The appeal was disposed of on 12.11.2008. The appellate Court allowed the appeal and decreed Regular Civil Suit No.379 of 1979. The appellate Court further restrained defendant No.1 perpetually from taking forceful possession of the suit land from the plaintiff without due process of law. The appellate Court also held that the plaintiff was entitled to 3 the price of the sugarcane which had been attached. 4. The substantial question of law which is required to be decided in this appeal is:- Whether the lower appellate Court could have decided the appeal and decreed the suit without deciding the cross objections filed by the appellant ? 5. The learned advocate for the appellant herein submits that, although the cross-objections had been filed by the defendant No.1 before the appellate Court, it has not taken cognizance of the cross-objections. He points out that the appellate Court has not discussed the cross objections while disposing of the appeal. He further submits that the operative order does not indicate whether the cross- objections are dismissed or whether they are still pending before the appellate Court and, therefore, according to him, the appeal will have to be remanded to the appellate Court for a fresh hearing alongwith the cross-objections. 6. Mr.Deshmukh, learned advocate appearing for the respondent herein i.e. the plaintiff, submits that although there are no specific observations that the cross-objections 4 have been considered by the appellate Court, a perusal of the order would indicate that the findings have been arrived at only after considering the cross-objections. He, therefore, submits that there is no need to remand the appeal. 7. Having heard the learned counsel for the parties and after perusing the copy of the judgment and order of the appellate Court, I am of the view that the appellate Court has erred while deciding the appeal. There is absolutely no reference to the cross-objections or indication that the appellate Court has in fact considered the objections raised while deciding the appeal. The appellate Court has also not stated as to whether the cross-objections are pending or have been disposed of. In these circumstances, in my opinion rather than keeping the appeal pending in this Court, it would be appropriate to remand the matter to the appellate Court for a fresh consideration of the appeal as well as the cross-objections filed by the defendant No.1 i.e. the appellant herein. 8. Thus, the substantial question of law raised in this appeal, as to whether the appellate Court fell in error while deciding the appeal without any reference to the cross- objection must be answered in the affirmative. 5 9. Appeal allowed. Cross-objections disposed of. 10. The appellate Court will consider both, the appeal filed by the plaintiff and the cross-objections submitted by the defendant No.1. 11. All contentions raised in the present appeal as well as the cross-objections filed in this appeal are kept open. 12. The plaintiff may make appropriate applications before the appellate Court for release of the price of the sugarcane which may be contested by the defendants. The appellate Court shall pass appropriate orders on such applications, in accordance with law, after hearing both the parties. 13. The status-quo as of today be maintained with respect to the suit property during the pendency of the appeal before the District Judge, Sangli. ..... 6