Bombay High Court
DEORAM KONDAJI BORASTEversusDAMODAR MOGAL JADHAV AND ORS.
- Decided
- Disposal
- Dismissed
- Bench
- GAURI GODSE
Holding
The second appeals are dismissed as they raise no substantial question of law and the first appellate court's clarification regarding substitution of names and entitlement to shares is correct.
Summary
The petitioners, purchasers of portions of a suit property, sought restoration of second appeals after their objections to the execution of a partition decree were rejected. The trial court had decreed a partition in 1986, which was confirmed on appeal, and the purchasers later acquired undivided shares from the original defendants. They raised objections under Section 151 of the CPC, which the first appellate court treated as an application under Order XXI Rule 97 and rejected, but clarified that their names should be substituted to the extent of the vendors' shares. The petitioners argued that they were entitled to specific possession based on their sale deeds, while the court held that they could only claim the share allotted to the original vendors. The High Court found no error in the first appellate court’s observations and concluded that the second appeals raised no substantial question of law, dismissing them and rendering pending applications infructuous.
Issues considered
- Whether the second appeals challenging the rejection of obstruction applications to the execution of the partition decree are maintainable.
- Whether purchasers of undivided shares can claim specific possession or allotment of a portion of the property based on their sale deeds.
- Whether the first appellate court correctly applied Section 151 CPC and Order XXI Rule 97 in rejecting the objections.
Legislation cited
- Code of Civil Procedure, 1908 — s. 151, Order XXI Rule 97
Subjects
- partition decree
- execution of decree
- sale deed
- substitution of names
- second appeal
- CPC
- obstruction application
- undivided share
Judgment
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rrpillai IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 946 OF 2015
WITH
INTERIM APPLICATION NO. 685 OF 2026
INTERIM APPLICATION (ST) NO. 39154 OF 2025
INTERIM APPLICATION (ST) NO. 39159 OF 2025
Shri Sampat Kondaji Boraste … Appellant/Applicant
Vs.
Shri Damodar Mogal Jadhav … Respondents
deceased
WITH
SECOND APPEAL NO. 933 OF 2015
WITH
INTERIM APPLICATION NO. 1517 OF 2026
INTERIM APPLICATION NO. 1518 OF 2026
INTERIM APPLICATION NO. 1509 OF 2026
Shri Deoram Kondaji Boraste … Appellant/Applicant
Vs.
Shri Damodar Mogal Jadhav … Respondents
deceased
WITH
SECOND APPEAL NO. 942 OF 2015
WITH
INTERIM APPLICATION (ST) NO. 38177 OF 2025
INTERIM APPLICATION (ST) NO. 12670 OF 2024
Digitally signed INTERIM APPLICATION (ST) NO. 38176 OF 2025
by
RAJESHWARI
RAJESHWARI RAMESH CIVIL APPLICATION NO. 290 OF 2020
RAMESH PILLAI
PILLAI Date:
2026.03.10
14:15:00
+0530 1/6
17-SA-946-2015+++.docx
Smt. Indira Suresh Patil … Appellant/Applicant
Vs.
Shri Damodar Mogal Jadhav … Respondents
deceased and Others
Mr. Girish Agrawal a/w. Ms. Chitra Darekar for the
Appellant/Applicant.
Mr. Vishal M. Dhamal for Legal Heirs of Deceased Respondent
Nos. 1 and 3.
CORAM : GAURI GODSE, J.
DATE : 27th FEBRUARY 2026
ORDER :
Civil Application No. 290 of 2020 in Second Appeal No. 942 of 2015
1. This civil application is for restoration of the second
appeal which was dismissed for non-removal of office
objections within the conditional time granted by the learned
registrar.
2. In the facts and circumstances of the case, application is
allowed and the Second Appeal No. 942 of 2025 is restored.
Second Appeal No. 946 of 2015, Second Appeal No. 933 of
2015 and Second Appeal No. 942 of 2015
3. All these second appeals are filed by the purchasers who
obstructed the execution of the partition decree. Their
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obstruction application was rejected by the trial court and the
first appellate court confirmed rejection of the obstructions
raised by the respective appellant. However, the trial court has
further clarified that the names of the respective appellants
(obstructionist/purchasers) be substituted in respect of the
property allotted to the respective shares of their vendors.
4. Learned counsel for the appellants submits that after the
partition decree, consolidation scheme was implemented. The
appellants are in possession of the respective shares as per
their respective sale deed. Hence, it was necessary for
adjusting respective shares of the appellants as per the area
purchased by them from the respective shareholders. He
therefore submits that the application filed by the appellants
seeking equities for allotment of the respective shares
purchased by them should have been considered by both the
courts.
5. Learned counsel for the appellants further submits that
there is no dispute on the sale deed executed in favour of the
respective appellants. Hence, the second appeal would require
consideration to the extent of the appellants rights to claim the
respective shares purchased by them.
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6. I have perused the papers of the appeals. The suit for
partition and separate possession was filed in 1979. The suit
was decreed granting 1/3rd share to the plaintiff and two
defendants on 13th August 1986. The defendants had preferred
an appeal to challenge the partition decree, however, the
appeal was dismissed. Hence, the partition decree granted on
13th August 1986 stands confirmed.
7. During the pendency of the first appeal, these appellants
purchased part of the suit property from the heirs and legal
representatives of the defendants. Based on their respective
sale deed the appellants raised objections on execution of the
partition decree. Though the applications were filed under
Section 151 of the Code of Civil Procedure, 1908 (“CPC”), the
first appellate court has clarified that the order passed by the
trial court was by treating the application under Order XXI Rule
97 of the CPC. Hence, the appeals preferred by the appellants
challenging the rejection of their objections to the execution
proceedings was considered by the first appellate court on
merits.
8. The first appellate court confirmed the rejection of their
objection, however, examined their respective contentions
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based on the sale deed executed in their favour in respect of
the part of the suit properties. By referring to the proposed
scheme of partition suggested under the execution clarified the
entitlement of the respective appellants based on their
respective sale deed. The first appellate court therefore clarified
that with reference to the respective sale deed in favour of the
appellants their names should be substituted to the extent of
undivided share of their respective vendors. With these
clarification the first appeals are disposed of.
9. The appellants have purchased the undivided share
during the pendency of appeal challenging the decree for
partition and separate possession. The appellants would
therefore step into the shoes of the respective defendants to
seek undivided share based on their respective sale deed. The
appellants would therefore not be entitled to claim possession
or allotment of share in respect of a specific portion by relying
upon their sale deed.
10. The first appellate court has therefore rightly clarified that
the appellants would be entitled to the share from their
respective vendors as allotted to the respective vendors in the
proposed scheme of partition suggested by the TILR.
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11. I do not find any error in the observations and clarification
issued by the first appellate court. The ground raised in the
second appeal would not require any consideration by this
court. The second appeals do not raise any substantial
question of law.
12. All the second appeals are dismissed.
13. All pending civil applications / interim applications are
disposed of as infructuous.
[GAURI GODSE, J.]
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