SHASHIKANT NAGNATH KERALE AND ANOTHERversusUMAKANT NAGNATH KERALE AND OTHERS

2026:BHC-AUG:13127


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                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      BENCH AT AURANGABAD

                            CIVIL REVISION APPLICATION NO. 243 OF 2025

                           SHASHIKANT NAGNATH KERALE AND ANOTHER
                                          VERSUS
                             UMAKANT NAGNATH KERALE AND OTHERS

                                                  ...
                            Advocate for the Applicants : Ms. Anjali Dube.
                     Advocate for Respondent Nos.1, 2, 4 & 5 : Mr. Sushant V. Dixit.
                                                  ...

                                         CORAM :        SHAILESH P. BRAHME, J.

                                         RESERVED ON   : 23.03.2026
                                         PRONOUNCED ON : 27.03.2026

                     FINAL ORDER :


                     1.    Taken up for final disposal with consent of the parties.


                     2.    Civil revision application is directed against order dated

                     13.08.2025 passed below Exh.20 refusing to reject the plaint of

                     Special Civil Suit No.68 of 2025. Applicants are original

                     defendants and respondents are original plaintiffs. They are

                     referred to as per their original status in the Trial Court.


                     3.    The relationship between the parties is undisputed.

                     Plaintiff No.1 Umakant, plaintiff Nos.3 to 6 and defendant

                     No.1 are the siblings and children of Nagnathappa and
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Parvatibai. Nagnathappa had filed Regular Civil Suit No.1132

of 1986 for injunction against present plaintiff No.1, defendant

No.1 and his wife Parvatibai in respect of Municipal House

No.174, 175 of CTS.No.9483 and Municipal House No.25

situated at Latur. The sketch of the properties was produced

along with the plaint. They had arrived at settlement in view of

partition effected on 13.11.1985. They were shown to be in

possession of those suit properties as per their shares. The suit

was disposed of in terms of the settlement vide order dated

07.10.1986.


4.    Plaintiffs have filed Special Civil Suit No.68 of 2025 for

partition, separate possession, rendition of accounts in respect

of house properties, agricultural lands, lease hold plots,

movable properties including the business of the family as

enumerated in paragraph No.1 of the plaint. Defendants

submitted application Exh.20 under Order VII Rule 11 for

rejection of the plaint on the ground of want of cause of action,

illusory cause of action and omission to claim relief.        It is

contested by the plaintiffs. It is rejected by the impugned order.
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5.    Learned    counsel    appearing    Ms.    Anjali    Dube     for

applicants submits that without seeking any challenge to the

decree dated 07.10.1986, suit is not maintainable. The cause

of action shown is illusory which is outcome of clever drafting.

Any challenge to decree passed in earlier round of litigation is

clearly barred by time and to overcome the impediment again

relief of partition is solicited. It is submitted that once there is

separation by decree of Civil Court, it is impermissible to

agitate the same relief through the sisters and adding

subsequently acquired properties. It is submitted that no right

to sue exists to the plaintiffs. The sisters are not entitled to

claim partition. Already there was separation by metes and

bounds in 1985 and decree passed on 07.10.1986. The such

suit is not maintainable.


6.    The submissions are repelled by learned counsel Mr.

Dixit. He would submit that the subject matter, parties and

claim as such are different. In earlier round of litigation, all

facts were not brought before the Court and dodging the rights

of the daughters the suit was compromised. It is vehemently

submitted that the decree passed on 07.10.1986 is not binding
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on plaintiff Nos.3 to 6. It was not a suit for partition. There

was no separation by metes and bounds. All properties were

not brought in common hotchpot. The joint family business

continued and the properties acquired through the business are

subjected to the relief in the present suit. It is further submitted

that prayers in the present suit are independent especially the

relief of rendition of account. It is contended that the purport

of the decree dated 07.10.1986 was to secure possession from

the tenant and not to have partition.


7.    Having considered rival submissions of the parties, it is

noticed that earlier suit was filed by Nagnathappa against his

two sons and wife. It was in respect of house properties at

CTS.No.9483 and Municipal House No.25 in ward No.21. The

daughters of Nagnathappa were not impleaded. Relying upon

the partition of the properties effected on 13.11.1985 the

consent decree was passed identifying and demarcating the

shares of the parties as per the sketch.        The decree dated

07.10.1986 was not subjected to challenge by the parties at

any point of time.
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8.     Present suit is filed by children of Nagnathappa on one

side including the daughters and his another son Shashikant

and his wife on another side for partition, possession, rendition

of accounts and consequential benefits. It is pertinent to notice

that plaintiff No.1 Umakant and defendant No.1 Shashikant

were parties in the earlier suit. The suit property described in

paragraph No.1-A was subject matter in earlier suit. The rest of

the suit properties are stated to have been acquired

subsequently and/or out of joint family business.


9.     The plaint expressly refers to the consent decree passed

in Regular Civil Suit No.1132 of 1986. The purport of the

decree is stated to be to secure possession of the shops from

the tenants. It is further stated that the decree was nominal

and was not intended to be acted upon. The meaningful

reading of the plaint especially paragraph Nos.5 to 7 shows

that it was an articulated attempt for eviction of the tenants.

Further paragraph shows that joint family business, immovable

properties and movables were not subjected to the partition,

earlier.
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10.   The consent decree passed on 07.10.1986 still subsists.

No prayer is solicited to challenge the decree but the tenor of

the plaint and prayers is to averred decree. If the daughters of

Nagnathappa wanted to claim share then they should have

challenge the consent decree in expressed terms. To circumvent

hurdle of limitation specific challenge has not been raised. The

cause of action appears to be illusory and outcome of clever

drafting.


11.   Earlier suit was for injunction but the consent decree of

partition and separation of shares was passed. This type of

course is permissible as per Order 23 Rule 3 of CPC. It cannot

be said that the consent decree would be void and not binding

on the plaintiffs. For that purpose also, a specific challenge has

to be raised to the consent decree which is absent.


12.   The joint family business was not subjected to partition

in earlier round of litigation. The movable and immovable

properties are stated to have been acquired from its nucleus.

The rejection of the plaint is not solicited qua the particular

properties but it is on the ground that their exists no right to
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sue. Therefore, the observations regarding partial rejection of

plaint are unsustainable.


13.   The plaint and the consent decree passed on earlier

occasion show that adding of the properties and the parties in

the present suit is camouflaged by devious and clever drafting

to overcome law of limitation as well as Order 23 Rule 3-A. It

is the submission of learned counsel Mr. Dixit that while

obtaining earlier decree, material facts were suppressed and

dodging the claim of sisters the consent decree was obtained.

If that is so then those are the more reasons for the plaintiff to

challenge the consent decree which is omitted cleverly. I find

substance in the submissions of learned counsel for the

applicants. The plaint is liable to be rejected.


14.   Learned counsel Ms. Anjali Dube seeks to rely on the

judgment of Ramisetty Venkatanna and another Vs. Nasyam

Jamal Saheb and others ; 2023 SCC OnLine SC 521 . In that

case also plaintiffs had cleverly avoided to claim any relief of

partition deed executed in the year 1953. In pursuance to the

partition deed, parties were separated by metes and bounds.

To bring the suit within limitation, necessary reliefs were not
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solicited. In present case also without seeking any relief in

respect of consent decree which is time barred, present suit is

filed. I find that present civil revision application deserves to be

allowed. I, therefore, pass following order :

                              ORDER

        (i)     Civil revision application is allowed.

        (ii)    Impugned order is quashed and set aside.

        (iii)   Plaint in Special Civil Suit No.68 of 2025 shall
                stand rejected.

        (iv)    Decree be drawn accordingly.

        (v)     There shall be no order as to cost.




                                            (SHAILESH P. BRAHME, J.)

                                      ...

vmk/-




15.     After pronouncement of judgment, learned counsel for

the respondents prays for stay to the operation and execution

of the judgment. He is unable to state the stage of the suit.
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The suit is of the year 2025. The plaint can be rejected at any

stage of the suit. Request for stay is rejected.




                                         (SHAILESH P. BRAHME, J.)

                                   ...

vmk/-