GOVIND SHANKAR PEDNEKARversusSATYAVAN RAMCHANDRA PEDNEKAR AND ANR

                         1                        82-WP-5946-2024 (C)

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CIRCUIT BENCH AT KOLHAPUR
                 CIVIL APPELLATE JURISDICTION

                  WRIT PETITION NO. 5946 OF 2024

Govind Shankar Pednekar                     …...Petitioner
      Vs.
Satyavan Ramchandra Pednekar & Anr.         …...Respondents

                              ...
Mr. Vikram N Walawalkar, Advocate for Petitioner.
Mr. Omkar Gandhi i/b Mr. Narendra P. Gandhi,            Advocate for
Respondent No.1.
                              ...

                      CORAM :    SHAILESH P. BRAHME, J.
                        DATE :   24TH SEPTEMBER, 2026.
ORDER :
.   Heard Mr. Vikram N Walawalkar, learned counsel appearing

for the Petitioner.

2.    This matter is taken up for final disposal with the consent of

the parties.

3.    The Petitioner takes exception to the order dated 11.09.2023

passed below Exhibit-21, refusing to frame the additional issues in

the final decree proceedings. The Petitioner is original plaintiff who

had filed R.C.S. No. 60 of 2001 for partition, possession and other

reliefs. The suit was decreed by the trial Court, and preliminary

decree was drawn on 17.11.2006. The decree was put to the
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execution. There were supervening events which led the respondent-

defendant to file a couple of applications for appointment of

Commissioner, in the final decree Application No.6 of 2019, those

were rejected by the trial Court. The Petitioner submitted Application

Exhibit-21, seeking framing of the issues so as to bring on record the

supervening events and which would facilitate execution of the

decree. By impugned order, the application is rejected.

3.    Mr. Walawalkar, learned counsel appearing for the Petitioner,

would submit that it is permissible to go into the subsequent events

and physical and topographical changes of the subject matter in the

final decree proceedings. The framing of the issues and bringing the

exact nature and location of the subject matter is required to execute

the decree passed by the trial Court. It is also submitted that the

Petitioner is claiming to be owner of the newly constructed house,

and the Respondents have no right, claim and interest to that extent.

4.    Learned counsel for the Respondents would support the order.

It is submitted that the trial Court has taken a reasonable and

possible view, and no interference is called for.

5.    It is not disputed that the preliminary decree passed in R.C.S.

No. 60 of 2001 is to be executed. As it is a decree of partition in
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respect of the agricultural land in Schedule-A and the dwelling house

shown in Schedule-B, the controversy pertains to the dwelling house

shown in Schedule-B, situated at Mouje Kolamb, Taluka Malwan,

District Sindhudurg. The subsequent events after passing of the

preliminary decree have to be taken into account so as to finalize the

rights of the parties. It is necessary to examine the supervening

events which are pertaining to the dimension, location and nature of

the suit lands and the developments done therein. There are ways

and means available for the parties to bring those events on record.

5.       Learned counsel for the Petitioner has placed on record the

judgments of the Supreme Court in the matter of Phoolchand and

Anr. Vs. Gopal Lal 1 I have gone through paragraphs 6 and 7, which

lay down that subsequent events, such as a change in shares, can be

taken into account in the final decree proceedings. Further reliance is

placed on the judgment of Ganduri and Anr. Vs. Chakiri and Anr. 2 ,

which, inter alia, relies upon the earlier judgment referred above.

The change in shares, the death, birth in the family and the change

in law need to be taken into account while passing the final decree

so as to ensure that the rights and liabilities amongst the parties are

crystallized conclusively.
1    AIR 1967 SC 1470
2    (2011) 9 scc 788
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6.       The Petitioner has filed Application Exhibit-21 for framing of

the issues so as to bring on record the subsequent events. Framing of

the issues and leading of the evidence like that of a suit is not

contemplated in the final decree proceedings. There is every

possibility of consuming more time in undertaking the said exercise.

It would be appropriate to appoint the Commissioner to examine the

location, dimension and nature of the properties so as to have a clear

picture of the original suit properties as well as the developments

carried therein and which would facilitate passing of the final

decree. In that view of the matter, presently, no interference is called

for in the impugned order.

7.       The Writ Petition is disposed of with the clarification that it

would be open to the parties as well as the trial Court, which is

seized of the final decree proceedings, to appoint a Commissioner or

to undertake such exercise so as to bring on record the location,

nature and dimension of the suit land and the developments made

during the pendency of the proceedings before passing the final

decree.

                                 [ SHAILESH P. BRAHME J. ]
Suresh