Bombay High Court
Mrs. Bhagiratha W/O Santoshji Gaurkar ... vs Rupchand S/O Pundalik Kadu And Ors on 11 February, 2026
2026:BHC-NAG:3057
6.SA.275.2022 Judgmentnnn.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.275 OF 2022
APPELLANT :- 1) Mrs. Bhagiratha w/o Santoshji Gaurkar,
(Ori. Def.3A-3F)
(On RA) Age - 70 years, occupation- housewife,
R/o Dava, Tah. Umred, District-Nagpur.
2) Mrs. Indirabai wd/o Baburaoji Chaukhe,
Age - 65 years, occu.- household, R/o
Jaytalal, Near Corporation School,
Nagpur.
3) Mrs. Anjanbai w/o Baburao Saundarkar,
Age- 63 years, occu.- household, R/o c/o
Since died through
her Lrs. brought on
record at Page No.3
Manoj Modekar, House no.197, Shiv
Nagar, Pardi, Nagpur.
4) Mrs. Bebibai wd/o Kacharuji Chaudhari,
Age - 59 years, occu.- household, R/o
Ambali (Savali), Tah. Kuhi, District -
Nagpur.
5) Mrs. Yamubai w/o Nagoji Choudhari,
Age - 57 years, occupation - household,
R/o Mohadi, Tah. Kuhi, District- Nagpur.
6) Mrs. Rekha w/o Ramesh Lakshane, Age-
50 years, occupation - household, R/o
house no.1, Trimurti Nagar, Ranala, Tah.
Kamptee, District - Nagpur.
..VERSUS..
RESPONDENTS :- 1) Shri. Rupchand s/o Kundalik Kadu, Age -
(On RA)
68 years, occupation - Agriculturist, R/o
Temasna, Tahsil - Kamptee, District -
6.SA.275.2022 Judgmentnnn.odt
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Nagpur. (original Defendant no.2)
2) Shri. Suresh s/o Kundalik Kadu, R/o Mini
Mata nagar, Vardhaman Nagar, Bhandara
Road, Nagpur (original Defendant No.3)
3) Shri. Pramod s/o Rupchand Kadu, Age-
40 years, occupation- Agriculturist,
(original Plaintiff)
4) Shri Dadarao s/o Rupchand Kadu, Age -
40 years, occupation-Agriculturist,
(original Defendant no.4)
5) Shri. Girdhari s/o Rupchand Kadu,
Age-45 years, occupation- agriculturist,
(original Defendant no.5)
The Respondent No.3 to 5 are resident of
Temasna, Tah. Kamptee, District -
Nagpur.
6) Smt. Kanchan wd/o Sudarshan Chawke,
Age- 33 years, occupation- household,
R/o c/o Indirabai Chawke, in front of
Corporation School, Jaitala, Tah. and
Dist. Nagpur (original Defendant no.7)
7) Maa Jija Mata Land Developers, through
its partner, Narendra s/o Jagannath
Kubde, Age- 52 years, occu. - Agri,
having its Registered office at Kamakshi,
Nagar, Wathoda, Nagpur (original
Defendant no.6)
8) Added Respondent No.8
8) Shri Rajesh s/o Manohar Kalmegh, Age-
48 years, occupation - Agriculturist, R/o
Plot No.40, Sanjay Nagar, Behind
Nandanvan Colony, Nagpur.
(Amendment carried out as per order
6.SA.275.2022 Judgmentnnn.odt
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dated 16.12.2024.)
9) Shri. Baburaoji s/o Ganpat Saundarkar,
Age - 70 years, occupation- Business,
10) Shri. Sanjay s/o Baburaoji Saundarkar,
Age - 55 years, occupation- Business,
Both Respondent no.9 and 10 are R/o.
Plot No.88, Near Kali Mata Mandir, Jinsi
Kapsi Khurd, Bhandara Road, Nagpur.
(Amendment carried out as per order
dated 12.11.2025)
11) Mrs. Sunita @ Lata w/o Vijay Atkare, Age
- 48 years, occupation - Household, R/o.
Behind Shiv Shakti Bear Bar, Kalmna
Navin Basti, Kamptee Road, Nagpur.
12) Mrs. Vaishali w/o Visheshwar Lakhe, Age
- 46 years, occupation - Household, R/o
Behind Ma Bhawani Mandir, Ma Bhawani
Nagar, Punapur, Nagpur-440035.
13) Shri. Shishupal s/o Baburaoji Saundarkar,
Age- 52 years, occupation- Business,
14) Shri. Indrapal s/o Baburaoji Saudarkar,
Age - 52 years, occupation- Business,
Both Respondent no.13 and 14 are R/o.
Plot No.88, Near Kali Mata Mandir, Jinsi
Kapsi Khurd, Bhandara Road, Nagpur.
WITH
SECOND APPEAL St. NO.4292 OF 2025
APPELLANTS :- 1) Mrs. Bhagiratah w/o Santoshji Gaurkar,
(ON R.A.)
(Ori. Resp. No.1 to 6) Age-70 years, occupation- housewife,
R/o Dava, Tah. Umred, District-Nagpur
6.SA.275.2022 Judgmentnnn.odt
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2) Mrs. Indirabai wd/o Baburaoji
Chaukhe, Age-65 years, occu.-
household, R/o Jaytala, Near
Corporation School, Nagpur.
3) Mrs. Anjanabai w/o Baburao
Saundarkar, Age- 63 years, occu.-
household, R/o c/o Manoj Modekar,
House no.197, Shiv Nagar, Pardi,
Nagpur
(Lrs of A-3 brought on record at pg-1-A
& pg-1-B)
3) Mrs. Anjanabai w/o Baburao
Saundarkar (since died through her
legal heirs) (LR's brough on record as
per order dated 08.10.2025)
3(i) Shri. Baburao S/o. Ganpat Saundarkar,
Age :- 70 years, Occupation: Business,
R/o:- Plot no.88, Near Kali Mata
Mandir, Jinsi Kapsi Khurd, Bhandara
Road, Nagpur.
3(ii) Shri. Sanjay S/o Baburao Saundarkar,
Age:- 55 years, Occupation: Business,
R/o:- Plot no.88, Near Kali Mata
Mandir, Jinsi Kapsi Khurd, Bhandara
Road, Nagpur
3(iii) Mrs. Lata @ Sunita W/o Vijayrao
Atkare, Age:- 48 years, Occupation:
Household, Occupation: Business, R/o:-
Behind Shiv Shakti Bear Bar, Kalamna
Navin Basti, Kamptee Road, Nagpur.
3(iv) Mrs. Vaishali W/o Vishveshwar Lakhe,
6.SA.275.2022 Judgmentnnn.odt
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Age:- 46 years, Occupation: Household,
R/o:- Behind Ma Bhawani Mandir, Ma
Bhawani Nagar, Punapur, Nagpur, Pin
Code 440035.
3(v) Shri. Shishupal s/o Baburao Saundarkar,
Age:- 52 years, Occupation: Business,
R/o:- Plot no.88, Near Kali Mata
Mandir, Jinsi Kapsi Khurd, Bhandara
Road, Nagpur.
3(vi) Shri. Indrapal s/o. Baburao Saundarkar,
Age about:- 50 years, Occupation:
Business, R/o. Plot no.88, Near Kali
MataMandir, JinsiKapsi Khurd,
Bhandara Road, Nagpur.
4) Mrs. Bebibai wd/o Kacharuji
Chaudhari, Age-59 years, occu.-
household, R/o Ambali (Savali), Tah.
Kuhi, District - Nagpur.
5) Mrs. Yamubai w/o Nagoji Choudhari,
Age-57 years, occupation-household,
R/o Mohadi, Tah. Kuhi, District-
Nagpur.
6) Mrs. Rekha w/o Ramesh Lakshane,
Age- 50 years, occupation- household,
R/o house no. 1, Trimurti Nagar,
Ranala, Tah. Kamptee, District-
Nagpur.
..VERSUS..
RESPONDENTS :- 1) Shri. Rupchand s/o Kundalik Kadu,
(On R.A.)
(Ori. Appell.) Age-60 years, occupation-Agriculturist,
6.SA.275.2022 Judgmentnnn.odt
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R/o Temasna, Tah. Kamptee, District-
Nagpur (original Defendant no.2)
2) Shri Suresh s/o Kundalik Kadu, Age-48
years, occupation- agriculturist, R/o
Mini Mata Nagar, Vardhaman Nagar,
Bhandara Road, Nagpur. (original
Defendant no.3)
3) Shri. Pramod s/o Rupchand Kadu, Age-
40 years, occupation-agriculturist,
(original Plaintiff)
4) Shri. Dadarao s/o Rupchand kadu, Age-
45 years, occupation-agriculturist,
(original Defendant no.4)
5) Shri. Girdhari s/o Rupchand Kadu,
Age- 40 years, occupation-agriculturist,
The non-applicant no. 3 to 5 are
resident of Temasna, Tah. Kamptee,
District- Nagpur.
6) Mrs. Kanchan w/o Sudarshan Chawke,
Age-33 years, occupation-household,
R/o c/o Indirabai Chawke, in front of
corporation school, Jaitala, Tah. And
District-Nagpur.(original Defendant
no.7)
7) Maa Jijamata Land Developers, through
its Partner, Shri. Narendra Jagannath
Kubde, R/o Kamakshi Nagar, Wathoda,
Dist. Nagpur. (original Defendant no.6)
Amendment carried out soft copy
uploaded at pg no.4A
8) Shri Rajesh s/o Manohar Kalmesh, Age-
Adult, occupation- Business, R/o Plot
No. 40, Snajay Nagar, Behind
Nandanvan Colony, Nagpur
9) Shri. Baburaoji s/o Ganpat Saundarkar,
Age- 70 years, occupation- Business,
6.SA.275.2022 Judgmentnnn.odt
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10) Shri Sanjay s/o Baburaoji Saundarkar,
Age- 55 years, occupation- Business,
Both Respondent No.9 and 10 are R/o.
Plot No.88, Near Kali Mata Mandir,
Jinsi Kapsi Khurd, Bhandara Road,
Nagpur.
(Amendment carried out as per order
dated 17.12.2025)
11) Mrs. Sunita @ Lata w/o Vijay Atkare,
Age - 48 years, occupation -
Household, R/o Behind Shiv Shakti
Bear Bar, Kalmna Navin Basti, Kamptee
Road, Nagpur.
12) Mrs. Vaishali w/o Visheshwar Lakhe,
Age- 46 years, occupation - Household,
R/o Behind Ma Bhawani mandir, Ma
Bhawani Nagar, Punapur,
Nagpur-440035.
13) Shri. Shishupal S/o Baburaoji Saudarkar,
Age-52 years, occupation- Business,
14) Shri. Indrapal s/o Baburaoji Saudarkar,
Age -52 years, occupation- Business,
Both the Respondent no.13 and 14 R/o.
Plot No.88, Near Kali Mata Mandir
Jinsi Kapsi Khurd, Bhandara Road,
Nagpur.
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Mr. S.A. Dutonde, Advocate for Appellants.
Dr. R.I. Agrawal, Advocate for Respondents.
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CORAM : ROHIT W. JOSHI, J.
DATE : 11/02/2026
6.SA.275.2022 Judgmentnnn.odt
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ORAL JUDGMENT :
SECOND APPEAL NO.275 OF 2022
1. The present appeal arises out of common judgment and decree dated 04.03.2022 passed by the learned District Judge-4, Nagpur, in Regular Civil Appeal Nos.16 of 2021, 159 of 2019 and 169 of 2019.
2. The present Second Appeal arises out of a suit for partition, being Special Civil Suit No.178 of 2014. The original plaintiff/Pramod, is son of defendant No.1/Rupchand. The defendant No.2/Suresh is brother of defendant No.1 and defendant No.3 is grandmother of plaintiff and mother of defendant Nos.1 and 2. The original defendant Nos.4, 5 and 7 are brothers and sisters, respectively, of the original plaintiff. The defendant No.6 had purchased suit properties bearing Survey Nos.160 and 202 from the defendant Nos.1, 2 and 3 vide sale deed dated 29.01.2014. The defendant No.3 died while the civil suit was pending. Her six daughters were brought on record as legal representatives in the said suit as defendant Nos.3(A) to 3(F).
3. The appellant No.3 who is the original defendant No.3(C) has expired however her legal representatives did not intend to prosecute the appeal. In view of the aforesaid, the names
6.SA.275.2022 Judgmentnnn.odt 9 of legal representatives of deceased appellant No.3 were ordered to incorporated in the appeal as respondent Nos.9 to 14 vide order dated 12.11.2025.
4. The said daughters [defendant Nos.3 (A) to 3(F)] filed counter claim challenging the sale deed dated 29.01.2024 executed by the defendant Nos.1, 2 and 3 in favour of defendant No.6 and sought a decree for partition and separate possession with respect to the suit properties. It will be appropriate to state that apart from Survey Nos.160 and 202 which are the two lands sold by the defendant Nos.1, 2 and 3 to the defendant No.6, Survey Nos.147, 149, residential house Nos.15, 162 and 577/86, are also subject matter of the suit.
5. The learned trial Court has dismissed the suit and partly decreed the counter claim. The learned trial Court has granted a decree for partition and separate possession with respect to the suit properties which were not sold by defendant Nos.1 to 3, holding that plaintiff Nos.1 and 2 and defendant Nos.3(A) to 3(F) each had 1/8th share in the said properties and were entitled to partition and separate possession thereof. The learned trial Court, however, refused to set aside the sale deed dated 29.01.2014 executed by the defendant Nos.1, 2 and 3 in favour of defendant No.6, since the
6.SA.275.2022 Judgmentnnn.odt 10 counter claimants/defendant Nos.3(A) to 3(F), had not paid appropriate court fees for seeking a declaration that the sale deed dated 29.01.2024 is not binding on them.
6. Aggrieved by the dismissal of the suit, the original plaintiff (Pramod), preferred appeal being Regular Civil Appeal No.16 of 2021, which came to be dismissed. Regular Civil Appeal No.169 of 2019, filed by the defendant Nos.3(A) to 3(F) (present appellants), challenging the part of the decree by which the learned trial Court refused to grant declaration that sale deed with respect to two suit properties was not binding on the defendant Nos.3(A) to 3(F), came to be dismissed. Likewise, Regular Civil Appeal No.159 of 2019, filed by the defendant Nos.1 and 2 came to be allowed.
7. The original plaintiff did not further assail the decree dismissing his suit. The defendant Nos.3(A) to 3(F) have filed present appeals inter alia challenging the decrees by learned First Appellate Court dismissing Regular Civil Appeal No.169 of 2019 filed by them and allowing Regular Civil Appeal No.159 of 2019 filed by the defendant Nos.1 and 2.
8. The learned trial Court accepted the contention of the defendant Nos.3(A) to 3(F)/counter claimants that they were entitled to share in the suit properties left behind by Kundlik, being
6.SA.275.2022 Judgmentnnn.odt 11 his daughters, and as such, his Class-I legal heirs. However, as stated above, the learned trial Court refused to grant a declaration that sale deed dated 29.01.2014 executed by the defendant Nos.1 to 3 in favour of defendant No.6 was not binding on the counter claimants, defendant Nos.3(A) to 3(F), on the ground that appropriate court fees for the said relief was not paid.
9. Apart from this, the learned trial Court has held that defendant No.6 is bonafide purchaser for value. In arriving at this finding, the learned trial Court has placed reliance on mutation entry No.190 which is recorded on 05.12.1993. This document is at Exh.134. At the outset, it needs to be stated that there is a categorical admission in cross-examination of original defendant No.1 that the sisters (defendant Nos.3(A) to 3(F)) had not executed any deed of relinquishment. It also appears from the cross- examination of defendant No.1 that the alleged relinquishment deed was not filed on record. Perusal of the document will indicate that as per this mutation entry, defendant Nos.3(A) to 3(F) had relinquished their rights in land bearing Survey Nos.147, 149, 160 and 202 of Village Temasna, Tah. Kamptee, Dist. Nagpur, by executing a deed of relinquishment on a stamp paper of Rs.10/-. Defendant No.6 aware about [defendant Nos.3(A) to 3(F)]
6.SA.275.2022 Judgmentnnn.odt 12 daughters. Perusal of the document will indicate that the mutation application was moved on 04.12.1993 and mutation was recorded on 05.12.1993. It appears that mutation entry is recorded without notice to defendant Nos.3(A) to 3(F) (Daughters).
10. The defendant No.6/purchaser claims that he is bonafide purchaser for the value. The contention is raised stating that revenue records were inspected for due diligence. In that case, the defendant No.6 would have come to know about the defendant Nos.3(A) to 3(F), who are daughters in the family. The defendant No.6 has ventured to purchase the property from defendant Nos.1 to 3 despite being aware about the fact that there were six daughters in the family. The case of defendant No.6 that he is a bonafide purchaser for value is therefore difficult to digest since as per his own case he has verified the revenue records which indicate that original owner had left behind six daughters and get yet he ventured to purchase the property from the widow and two sons only.
11. It appears from Exh.134 that the relinquishment deed was written merely on the stamp paper of Rs.10/- and it is undisputedly an unregistered document. The daughters and sons had inherited the property from their father as tenants-in-common and as such, relinquishment deed will be inoperative for want of
6.SA.275.2022 Judgmentnnn.odt 13 registration, since the title of each legal heir is a separate title in view of Section 8 read with Section 19 of the Hindu Succession Act, 1956.
12. The learned trial Court also held that the suit properties were inherited by the Class-I legal heirs of deceased Kundlik under Section 8 of the Hindu Succession Act, 1956, which implies that the suit properties, became the separate properties of legal heirs of deceased Kundlik namely the defendant Nos.1 and 2 (sons), defendant No.3 (Widow) and defendant Nos.3(A) to 3(F) (daughters). The suit filed by the original plaintiff (grandson) was held to be not maintainable during the lifetime of his father (defendant No.1).
13. The defendant Nos.3(A) to 3(F)/counter claimants are admittedly not parties to the sale deed, therefore they are not required to seek a decree for cancellation of sale deed. A mere declaration that the sale deed is not binding on them and not valid to the extent of their shares will suffice. The principal relief sought in the counter claim is for partition and separate possession. Admittedly, the appropriate court fees for the said relief is paid. Since the counter claimants were not required to challenge the sale deed, there was no need for payment of court fees for seeking
6.SA.275.2022 Judgmentnnn.odt 14 declaration that the sale deed is not binding on them. The learned trial Court has therefore clearly erred in holding that the counter claim was not maintainable with respect to challenge the sale deed since appropriate court fee is not paid.
14. The learned Advocate for the appellants/counter claimants has rightly placed reliance on judgment of the Hon'ble Supreme Court in the case of Suhrid Singh @ Sardool Singh ..vs.. Randhir Singh and Ors1 as also judgment in the case of M/s Diamond Developers ..vs.. Mr. Krushna Sitaram J. Sheetty, dated 20.12.2017 passed by this Court in Civil Revision Application No.358 of 2016 (Civil Appellate Jurisdiction at Bombay).
15. The learned First Appellate Court has excluded the counter claim, holding that the defendant Nos.3(A) to 3(F) were brought on record only as legal representatives of original defendant No.3, (mother) and as such, they could contest the suit only in the capacity of legal representatives and not in their independent right. On this ground, the learned First Appellate Court has set aside the decree passed by the learned trial Court granting partition and separate possession with respect to the suit properties which were not sold by the defendant Nos.1 to 3 to the defendant No.6 and further excluded counter claim in its entirety and granted liberty to 1 AIR 2010 SC 2807
6.SA.275.2022 Judgmentnnn.odt 15 file a fresh suit.
16. In the considered opinion of this Court, the learned First Appellate Court ought not to have excluded the counter claim once it was adjudicated on merits by the learned trial Court. It will be appropriate to refer to Order VIII Rule 6-C of the CPC, which provides that in case where a counter claim is filed by the defendant, the plaintiff can make a motion to the Court that the counter claim should be decided as an independent suit by excluding the same. However, such an objection is required to be raised before issues are framed in relation to counter claim. In the case at hand, the issues are framed with respect to counter claim, parties proceeded with trial of the counter claim and thereafter the learned trial Court has decided the counter claim on merits. The learned Advocate for the appellants did not point out that any application for exclusion of counter claim was filed before the learned trial Court. In such circumstances, the learned First Appellate Court ought not to have directed exclusion of the counter claim on the ground that the defendant Nos.3(A) to 3(F) were not arrayed as parties in their individual right but only as legal representatives of their mother deceased defendant No.3. The learned First Appellate Court has clearly exceeds its jurisdiction in ordering deletion of counter claim
6.SA.275.2022 Judgmentnnn.odt 16 having regard to the mandate of Order VIII Rule 6-C of the CPC, which provides that order for exclusion of counter claim can be passed by the learned trial Court at a stage prior to framing of issues relating to counter claim.
17. Apart from this, the learned First Appellate Court completely lost sight of Section 99 of the Code of Civil Procedure, which provides that an Appellate Court should not set aside any decree merely on the ground of technicalities. A counter claim for all practical purposes is independent suit by itself. The counter claimants had led evidence and had substantiated their claim to the suit properties. No fruitful purpose will be served by excluding the counter claim after its adjudication on merits and granting liberty to the counter claimants to file a fresh suit. It will only result in multiplicity of proceedings.
18. It needs to be stated that the learned Courts have concurrently held that the suit filed by the plaintiff was not maintainable because his father, defendant No.1 was alive and the suit properties were his self-acquired properties. As such the suit properties were inherited under Section 8 of the Hindu Succession Act, 1956. The original owner Kundlik, grandfather of plaintiff had admittedly died intestate. It is obvious that his daughters i.e.
6.SA.275.2022 Judgmentnnn.odt 17 defendant Nos.3(A) to 3(F)/counter claimants will be entitled to share in the properties of the deceased father being his Class-I legal heirs. There cannot be any dispute with respect to 1/8th share of the defendant Nos.3(A) to 3(F) in the suit properties wherein in ailnated and 1/9th share each in the suit properites i.e. bearing Survey Nos.160 and 202 which were sold by the defendant Nos.1, 2 and 3 to the defendant No.6.
19. Mr. Agrawal, learned Advocate for the respondents has relied the judgments of the Hon'ble Supreme Court in the cases of Bal Kishan ..vs.. Om Prakash and another2, Suresh Lachhmandas Raheja ..vs.. Gopal Lachhmandas Raheja & Ors.3, Malaga Realtors Pvt. Ltd. ..vs.. Vilas Pundalik Malid and others 4, Communidade of Pirla ..vs.. Government of Goa5, Manguesh Rajaram Wagle ..vs.. Suresh D. Naik6, Dareppa Alagouda ..vs.. Mallappa Shivalingappa7, Smt. Chandra Kala and others ..vs.. Kanal Mal and others 8, Abhishek S/o Vikram Boke ..vs.. Dr. Ashwinikumar Arvind Deshmukh9, Satyender and Ors. ..vs.. Saroj and Ors.10, Anantram 2 (1986) 4 SCC 155 3 2021 (4) ALL MR 175 4 2019(4) Mh.L.J. 883 5 2010(6) Mh.L.J.433 6 2008(3) Mh.L.J. 297 7 AIR 1947 Bom 307 8 AIR 2003 Rajasthan 306 9 2017(1) Mh.L.J. 342 10 AIR 2022 SC 4732
6.SA.275.2022 Judgmentnnn.odt 18 Bhotra ..vs.. Pratima Bhotra and Ors11 and Vidyawati ..vs.. Man Mohan and others12.
20. The aforesaid judgments are cited on two points, first that a counter claim will be maintainable only if relief is sought against plaintiff and that counter-claim to seek relief against co-defendants is not maintainable and secondly, a person who is brought on record as legal representative of deceased party to a suit can contest the suit only in his/her capacity of legal representative and not in individual capacity.
21. Whereas there cannot be any dispute with respect to proposition that relief in counter-claim must be sought against the plaintiff and not only against co-defendants, in the present case, the appellants contested the counter-claim on merits and they did not file any application under Order VIII Rule 6-C for exclusion of counter-claim. Having suffered an adverse decree in the counterclaim, the appellants cannot raise this contention in the second appeal. They are estopped from doing so. It must be reiterated that, in view of undisputed fact that father of defendant Nos.1, 2, 3(A) to 3(F) and 4 to 6, was owner of the property and 11 AIR 2024 Orissa 126 12 (1995) 5 SCC 431
6.SA.275.2022 Judgmentnnn.odt 19 that he has died intestate, the defendant Nos.3(a) to 3(f), who are daughters, will obviously have an equal share in the suit property. Therefore, it will not be appropriate to show any indulgence in favour of the appellants on this technical ground, having regard to mandate of Section 99 of the Code of Civil Procedure, 1908, particularly when they did not raise such objection at first available opportunity. For the same reason, the objection pertaining to defendant Nos.3(a) to 3(f) seeking relief in their individual right and not contesting the suit in the limited capacity of legal representatives of their mother, deceased defendant No.3, is also liable to be rejected.
22. In view of the above, the substantial questions of law framed vide order dated 10.08.2022 are answered in favour of the appellants/counter claimants and against the respondents. Second Appeal is allowed in the following terms :-
a) Both the judgment and decree dated 28.02.2019 passed by the learned 5th Joint Civil Judge Senior Division Nagpur, in Special Civil Suit No.178 of 2014 and common judgment and decree dated 04.03.2022 passed by the leanred District Judge-4, Napgur in Regular Civil
6.SA.275.2022 Judgmentnnn.odt 20 Appeal Nos.16 of 2021, 159 of 2019 and 169 of 2019 is quashed and set aside.
b) Counter claim filed by the present appellants i.e. defendant Nos.3(A) to 3(F), in Special Civil Suit No.178 of 2014, decided by the learned 5th Jt. Civil Judge Senior Division, Nagpur, vide judgment and decree dated 28.02.2019 is allowed.
c) It is declared that, sale deed dated 29.01.2014 executed by the defendant Nos.1 and 2 and defendant Nos.3(A) to 3(F) each, have 1/8th undivided share in the other suit properties i.e. Survey Nos.147 and 149 and Residential House Nos.15, 162 and 577/86 and are entitled for partition and separate possession with respect to the same;
d) The sale deed dated 29.01.2014 executed by defendant Nos.1, 2 and 3 in favour of defendant No.6 is valid to the extent of 3/9th share of defendant Nos.1, 2 and 3 and is not binding on the defendant Nos.3(A) to 3(F) to the extent of their 6/9th share. Each of the defendant Nos.3(A) to 3(F) is entitled to partition, and separate possession with respect to 1/9th undivided share in suit
6.SA.275.2022 Judgmentnnn.odt 21 properties bearing Survey Nos.160 and 202.
e) In the final decree proceedings, the learned Court/Revenue Authority may consider allotting suit properties bearing Survey Nos.160 and 202 to the share of defendant No.6 by adjusting the shares of the counter claimants/defendant Nos.3(A) to 3(F) in other properties.
f) Parties to bear their own costs.
g) Decree be prepared accordingly.
CIVIL APPLICATION (CAS) NO.339 OF 2025 IN SECOND APPEAL ST. NO.4292 OF 2025
23. The present application is filed seeking condonation of delay of 989 days in filing Second Appeal. The decrees impugned in the said appeal are also subject matter of challenge in the Second Appeal No.275 of 2022 by the same appellants. However, the present appeal is filed in view of the objection raised by the respondents that two separate appeals will have to be filed. Since both the appeals arise out of a common sale deed, there is no need to file separate appeals, as held by this Court in the case of Shankar Masu Dokare v. Shobha Subhash Dokare,13. The delay of 989 days 13 2015(2) Mh.L.J. 263
6.SA.275.2022 Judgmentnnn.odt 22 caused in filing Second Appeal is therefore condoned. SECOND APPEAL ST. NO.4292 OF 2025
24. The present appeal arises out of common judgment and decree dated 04.03.2022 passed by the learned District Judge-4, Nagpur in Regular Civil Appeal Nos.16 of 2021, 159 of 2019 and 169 of 2019. Second Appeal No.275 of 2022 arising out of same judgment and decree is allowed by this Court.
25. For the reasons recorded in Second Appeal No. 275 of 2022, present Second Appeal is allowed.
26. At this stage, Mr. Agrawal, learned Advocate for the respondents seeks stay of twelve weeks to execution of the decree. The learned Advocate for the appellants strongly opposes the prayer. The counter claim was dismissed merely on technicalities. On merits the claim of defendant Nos.3(A) to 3(F) is undisputable.
27. The prayer for granting stay is rejected.
(ROHIT W. JOSHI, J.) C.L. Dhakate