Case Note & Summary
The appellant, a third party, filed an appeal against the judgment and decree in Regular Civil Appeal No.201 of 2015, which had affirmed the decree in Regular Civil Suit No.70 of 2009. The respondent No.1 had filed the suit for partition of Survey No.365, village Waigaon (Nipani), Wardha. The appellant claimed ownership of Survey No.365 based on his name appearing in the revenue record (7/12 extract) via mutation entry No.1480 of 2011, which was not challenged. The appellant was not made a party to the suit. The trial court decreed the suit, and the first appellate court dismissed the appellant's appeal, holding that he failed to prove his right. The appellant argued that his valuable right was affected and sought remand for fresh hearing. The respondents opposed, citing an earlier partition between forefathers and a final order under Section 85 of the Maharashtra Land Revenue Code, 1966. The High Court perused the records and found that the appellant's name was recorded in the revenue record of the suit property, making him a necessary party. The court held that the suit property could not be partitioned in his absence, and the impugned judgments suffered from patent illegality. The court set aside both judgments and decrees, allowed the appeal, and remanded the suit to the trial court with directions: the plaintiff must implead the appellant as a defendant within one month, failing which the suit would be dismissed; all properties of the common ancestor (late Nama) must be brought into the common hotchpot; all descendants with rights must be added as parties; the respondent No.10 (acquiring body) is not a necessary party and should be deleted; the trial court must decide the suit on merits within one year, casting issues afresh and giving full opportunity to lead evidence. The court also directed that if any joint family property was sold by the appellant, it should be included in the suit and his share adjusted accordingly, but the purchaser need not be made a party. The parties were directed to appear on 19.7.2024.
Headnote
A) Civil Procedure - Necessary Party - Partition Suit - Non-Joinder - A person whose name is recorded in the revenue record of the suit property is a necessary party to a partition suit; decree passed in his absence is patently illegal. The court set aside the judgments of both lower courts and remanded the suit for fresh trial after impleading the appellant. (Paras 5-9) B) Property Law - Partition - Earlier Partition - Evidence - The existence of an earlier partition is a matter of evidence; parties are at liberty to adduce evidence to establish partition by metes and bounds. (Para 6) C) Civil Procedure - Remand - Directions - The trial court was directed to decide the suit on merits after giving full opportunity to all parties to amend pleadings and lead evidence, and to conclude trial within one year. (Paras 8-14)
Issue of Consideration
Whether the appellant, whose name appears in the revenue record of the suit property, is a necessary party to the partition suit and whether the suit can be decided in his absence.
Final Decision
Appeal allowed. Impugned judgments and decrees of both courts set aside. Suit remanded to trial court for fresh decision on merits with directions: plaintiff to implead appellant as defendant within one month, else suit dismissed; all properties of common ancestor late Nama to be brought into common hotpotch; all descendants with rights to be added; respondent No.10 to be deleted; trial court to conclude trial within one year; parties to appear on 19.7.2024.
Law Points
- Necessary party
- partition suit
- non-joinder
- remand
- opportunity of hearing
- revenue record
- mutation entry
- Section 85 Maharashtra Land Revenue Code
- 1966
- Section 30(b) Code of Civil Procedure
- 1908
