Bombay High Court
Jagannath S/O Ganu Ghate vs Sau Tarabai @ Parwatibai Maroti Dhengle on 10 June, 2019
Author: V. M. Deshpande
Bench: V.M. Deshpande
1 sa46.19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.46/2019
Jagannath s/o Gana Ghate .vs. Sau. Tarabai @ Parwatibai Maroti Dhengle
_______________________________________________________________________
Office Notes, Office Memoramda of Coram,
appearances, Court's orders of directions Court's or Judge's orders.
and Registrar's Orders.
Mr. Rohit Joshi, Advocate for appellant.
CORAM : V. M. DESHPANDE, J.
DATED : JUNE 10, 2019 Heard Mr.Joshi, learned counsel for appellant. The present appeal is by the original defendant. Mr.Joshi, learned counsel for the appellant submits that the respondent-plaintiff is his sister. According to the learned counsel, when suit was filed, in the plaint, it was stated that father of the plaintiff and defendant died in the year 1954 i.e. prior to the coming into force of the Hindu Succession Act. The suit was for partition and possession. The learned trial Court dismissed the suit.
It is the submission of the learned counsel for the appellant that thereafter the respondent-plaintiff filed the appeal. Mr. Joshi, learned counsel for the appellant submits that in the said appeal, an application for amendment was allowed by the learned lower appellate Court, permitting the respondent-original plaintiff to incorporate the fact that the father had died in the year 1965. However, he submitted that no evidence in that behalf was adduced. It is his submission that assuming that the father died in the year 1965, even otherwise, in view of law laid down by the Hon'ble Apex Court in Prakash and others .Vs. Phulavati and Ors.; reported in (2016) 2 SCC 36, the respondent will not be entitled to get more than 1/3rd share.
::: Uploaded on - 10/06/2019 ::: Downloaded on - 11/06/2019 04:39:55 :::2 sa46.19.odt In view of above, I find some force in this submission. Hence, issue notice for final disposal to the respondent, on the following substantial question of law, returnable on 08.07.2019.
"Whether the judgment and decree passed by District Judge-3, Chandrapur is in accordance with the law laid down by the Hon'ble Apex Court in Prakash and others .Vs. Phulavati and Ors.; supra"
Civil Application No.1041/2018 Heard.
Issue notice to the non applicant, returnable on 08.07.2019.
In the meanwhile, though precept proceedings may go on before the revenue authorities, the parties are directed to maintain status quo in respect of possession of the property.
JUDGE kahale ::: Uploaded on - 10/06/2019 ::: Downloaded on - 11/06/2019 04:39:55 :::