1 / 5 23 (2)-sa 109-18 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR SECOND APPEAL NO.109 OF 2018 Pandhari Bhaiyyaji Sahare and one. Vs. Sudearbai Ganpatrao Mule and ors. ---------------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's Orders. or directions and Registrar's orders. ---------------------------------------------------------------------------------------------- Mr. V.D.Muley, counsel for the Appellants. Mr.C.F.Bhagwani,counsel for respondent No.1. Mr.H.N.Verma, counsel for the respondent No.2. CORAM : MRS. VRUSHALI V. JOSHI, J. DATE : 31/08/2026 1. The appellants have preferred the present appeal raising the following substantial question of law: “The plaintiff was defendant No.9 in R.C.S. No.15/1981 which was a suit for partition and separate possession that ended in a compromise decree dated 17/11/1992, whether the subsequent suit for partition could be filed without seeking any declaration as to the effect of the earlier decree? " Kavita 2026:BHC-NAG:11315 2 / 5 23 (2)-sa 109-18 2. The appellants herein are Defendant Nos. 23 and 25 in Civil Suit No. 38 of 2004. The plaintiff has filed the suit for partition. Earlier, a suit for partition and separate possession, being R.C.S. No. 15 of 1981, was instituted, which came to be disposed of by way of a compromise decree dated 17.11.1992. 3. The plaintiff in the subsequent suit was a party to the earlier suit; however, she was not a party to the compromise entered into between the other parties, pursuant to which the compromise decree came to be passed. The plaintiff is one of the legal heirs of Marotrao. According to the plaintiff in Special Civil Suit No.38 of 2004, all the other legal heirs had received their respective shares from the share of Marotrao, whereas the plaintiff/respondent herein had not received her legitimate share. Therefore, she instituted the subsequent suit for partition and separate possession, impleading the concerned family members as parties. 4. The said suit came to be decreed and the plaintiff was held entitled to a 1/8th share from the share of Marotrao which was given to his sons. Defendant Nos. 23 and 25, who are the maternal uncles of the plaintiff, challenged the said judgment Kavita 3 / 5 23 (2)-sa 109-18 and decree before the Appellate Court. Their contention was that, under the earlier compromise decree, the share of the sons of Marotrao had already been divided and that the shares of the other two daughters/sisters except this plaintiff had also been included while granting share in compromise decree. It is, therefore, necessary to include the entire share of Marotrao for determining the share to which the plaintiff is entitled. 5. The First Appellate Court, however, dismissed the appeal and confirmed the judgment and decree passed by the learned Trial Court. Hence, the present appeal has been preferred by Defendant Nos. 23 and 25 raising the aforesaid substantial question of law, namely, whether the subsequent suit was maintainable in the absence of a prayer seeking declaration regarding the effect and binding nature of the earlier compromise decree. 6. I have heard the learned counsel appearing for the respective parties and have perused the judgments and decrees passed by both the Courts below. Kavita 4 / 5 23 (2)-sa 109-18 7. On perusal of the judgments passed by the Courts below, it appears that the aforesaid issue was considered by both the Courts. Both the Courts have recorded a finding that the subsequent suit was maintainable, particularly in view of the fact that the plaintiff was not a party to the compromise decree. Therefore, merely on the ground that the earlier suit had culminated in a compromise decree, the subsequent suit filed by the plaintiff claiming her share could not be held to be not maintainable. 8. However, on considering the pleadings, the contents of the application and the decree passed by the Trial Court, it appears that the plaintiff has been held entitled to a 1/8th share from the share of the sons of Marotrao. 9. In the facts and circumstances of the case, the plaintiff is entitled to her 1/8th share in the entire property of Marotrao. While determining her share, the shares of the other daughters/sisters of Marotrao are also required to be taken into consideration. To that extent, the judgments and decrees passed by the Courts below require modification. Kavita 5 / 5 23 (2)-sa 109-18 10. Accordingly, the plaintiff shall be entitled to a 1/8th share not merely from the share of the sons of Marotrao, but in the entire property of Marotrao, subject to exclusion of the property acquired by MHADA. 11. In view of the above observations, the appeal stands disposed of. The judgments and decrees passed by the trial court and confirmed by the appellate Court stand modified to the aforesaid extent. The property acquired by MHADA shall stand excluded while determining the plaintiff's share. JUDGE Kavita Signed by: Kavita P Tayade Designation: PS To Honourable Judge Date: 01/09/2026 18:36:04