Case Note & Summary
The second appeal arises from a suit for partition and separate possession filed by the respondents (original plaintiffs) against the appellant (defendant no. 2) and others. The trial court initially dismissed the suit. Aggrieved, the plaintiffs appealed to the first appellate court, which reversed the trial court's decision and decreed the suit, declaring that the plaintiffs and defendant no. 2 each hold a 1/4th share in the suit property. Defendant no. 2 then preferred the present second appeal challenging the first appellate court's judgment and decree. The appeal was admitted on 21 February 1994 and was eventually heard by the High Court, which reserved its judgment on 12 December 2024 and pronounced it on 8 April 2025. The core legal question was whether the first appellate court correctly interfered with the trial court's findings and granted the relief of partition and separate possession. The judgment of the High Court, however, is not provided in the extracted text, so the final decision remains unknown.
Headnote
A) Civil Procedure - Second Appeal - Challenge to Decree Granting Partition and Declaration of Shares - Code of Civil Procedure, 1908, Second Appeal - The appeal challenges the first appellate court's decree which reversed the trial court's dismissal of a suit for partition and separate possession, holding that the plaintiffs and defendant no. 2 each have a 1/4th share in the suit property - The second appeal was admitted and heard on merits (Paras 1-2).
Issue of Consideration
Whether the first appellate court was justified in reversing the trial court's dismissal and decreeing the suit for partition and separate possession?
Case Details
2025 LawText (BOM) (04) 98
Second Appeal No. 13 of 1994
Mr. V. S. Talkute for the Appellant, Mr. Ajit Kenjale along with Mr. Suraj Bansode, Mr. Sohil Gulabani, and Mr. Kaustubh Kandpile for the Respondents
Uttam Ganu Nale, Kantilal Ganu Nale (deceased) through LRs Samita Kantilal Nale, Yavlesh Kantilal Nale, Baye Kantilal Nale
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Nature of Litigation
Second appeal against the judgment and decree of the first appellate court which decreed a suit for partition and separate possession.
Remedy Sought
Defendant No. 2 (appellant) seeks to set aside the first appellate court's decree and restore the trial court's dismissal of the partition suit.
Filing Reason
The first appellate court allowed the plaintiffs' appeal and decreed the suit, declaring that the plaintiffs and defendant no. 2 each have a 1/4th share in the suit property. Defendant no. 2 challenged this decree by way of second appeal.
Previous Decisions
Trial court dismissed the suit for partition and separate possession. First appellate court allowed the appeal and decreed the suit in favor of the plaintiffs.
Issues
Whether the first appellate court was justified in reversing the trial court's dismissal and decreeing the suit for partition and separate possession?
Judgment Excerpts
This appeal is preferred by defendant no. 2 to challenge the judgment and decree passed by the first Appellate Court allowing the plaintiffs’ appeal. The trial court had dismissed the suit for partition and separate possession. However, in an appeal preferred by the plaintiffs, the suit is decreed against defendant no. 2, thereby declaring that plaintiff nos. 1 to 3 and defendant no. 2 have 1/4th share each in the suit property.
The second appeal is admitted vide order date 21st February 1994.
Procedural History
The suit for partition and separate possession was filed by the plaintiffs (respondents) against defendant no. 2 (appellant) and others. The trial court dismissed the suit. On appeal by the plaintiffs, the first appellate court allowed the appeal and decreed the suit, declaring that the plaintiffs and defendant no. 2 each have a 1/4th share in the suit property. Defendant no. 2 then filed the present second appeal, which was admitted on 21 February 1994. The High Court heard the appeal and reserved its judgment on 12 December 2024, and pronounced it on 8 April 2025.
