43. SA 339.13.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. SECOND APPEAL NO.339 OF 2013 APPELLANTS Ori. Defd. No. 7 to 13 01. Shri Hemraj s/o Beniramji Ghate, Aged about 65 years, Occupation – Business (Dead) through his legal representatives:- 1-A Shri Surendra s/o Hemraj Ghate, Aged about 37 Years, Occupation – Business; 1-B. Shri Guddu s/o Hemraj Ghate, Aged about 35 Years, Occupation – Business; 1-C Shri Mohan s/o Hemraj Ghate, Aged about 32 years, Occupation – Business; 1-D Shri Shailesh s/o Hemraj Ghate, Aged about 30 Years, Occupation – Businesss; 1-E Shri Laxmibai w/o Hemraj Ghate, Aged about 62 years, Occupation – Household affairs; All Residents of Bohara Colony, Mehadibag, Itwara, Nagpur 02. Shri Ramdas s/o Beniramji Ghate, expired during the pendency of the Appeal, through his legal representatives:- 2-A Smt. Nirmala wd/o Ramdas Ghate, Age Major, Occupation-Household affairs; 2-B Shri Nilkanth s/o Ramdas Ghate, Age Major, Occupation -Cultivator; 2025:BHC-NAG:11317 43. SA 339.13.odt 2 2-C Shri Amol s/o Ramdas Ghate, Age Major, Occupation-Private Business; 2-D Shri Jagdish s/o Ramdas Ghate, Age Major, Occupation-Private Business; 2-E Sau. Mala w/o Arun Ghamele, Age Major, Occupation-Household affairs, 2-F Mrs. Saroj w/o Kundan Lende, Age Major, Occupation-Household affairs; All Residents of Maskasath Itwari, Nagpur 03 Shri Tulsiram s/o Beniramji Ghate, Aged about 48 years, Occupation – Business; 3a. Legal Heirs of Appellant No.3 Tulshiram Beniramji Ghate Sundrabai Tulshiramji Ghate Aged 70 years, Occ.: Household, R/o. Near Nehru Putla, Maskastah, Nagpur. 3b. Ganesh Tulshiramji Ghate Aged 43 years, R/o Near Nehru Putla, Maskastah, Nagpur. 3c. Padma Subhodini Wadibhasme Aged 46 years, R/o. Bhavani Nagar, Pardi, Nagpur. 3d. Shila Dyaneshwarji Lanjewar Aged 41 years, R/o. Shashtri Nagar, Nagpur. (Amendment carried out as per Court 43. SA 339.13.odt 3 order dt. 10/10/25 & 15/10/25) 04. Shri Narayandas s/o Beniramji Ghate, Aged about 64 Years, Occupation – Business; 4a. Legal Heirs of Applicant No.4 Narayandas Beniramji Ghate. Vimlatai Narayandas Ghate Aged 67 years, R/o. Ghatate Nagar, Pardi, Nagpur 4b. Pornima Prakash Waghulkar Aged 43 years R/o Wardhaman Nagar Nagpur 4c. Manoj Narayanrao Ghate Aged 41 years R/o Ghatate Nagar Pardi Nagpur 4d. Ranjana Prafulla Rakshak Aged 39 years R/o Baharat Nagar shikshak colony Nagpur 4e. Laxmikant Narayandas Ghate Aged 37 years R/o Gulmohar Nagar Bharatwada Road Nagpur 4f. Sagar Narayandas Ghate Aged 35 years R/o Bhavani Nagar Pardi Nagpur (Amendment carried out as per Court order dt. 10/10/25 & 15/10/25) 05. Shri. Shivdas s/o Beniramji Ghate, Aged about 78 years, Occupation-Business; 43. SA 339.13.odt 4 06. Shri Jagannath s/o Beniramji Ghate, Aged about 42 Years, Occupation – Business (Dead), No legal heirs. All residents of Maskasath, Itwari, Nagpur Legal Heirs Appellant No.6 Jagannath Beniramji Ghate 6a. Shobhatai Jagannathji Ghate Aged 55 years R/o Gulmohar Nagar Nagpur 6b. Manish Jagannathji Ghate Aged 42 years R/o Gulmohar Nagar Nagpur 6c. Pinki Shantanu Tekade Aged Major R/o. Narkhed Tq. Narkhed Distt. Nagpur 6d. Bakul Jagannathji Ghate Aged 37 years, R/o. Gulmohar, Nagar, Nagpur. (Amendment carried out as per Court order dt. 10.10.25 and 15.10.25) 07. Smt. Sonabai w/o Beniramji Ghate, expired, through her legal representatives 7-1 Shri Rahul s/o Haribhau Kalwatkar, Aged about 20 years, Occupation – Private Business, Resident of: Azamshaha Chowk, Juni Mangalwari, Nagpur; 43. SA 339.13.odt 5 7.2 Mrs. Sarika w/o Ajay Chafle, Aged about 23 Years, Occupatioin – Household, Affairs, Resident of: Rampeth, Near Jagannath Swami Om Furniture Mart, Rampeth, Nagpur; 7.3 Mrs. Maya w/o Abhay Lambat, Age Major, Occupation – Household Affairs, Resident of: Manewada Road, Shrinagar, Plot No.203, in the house of Shrirao Lambat (There are all L.R.S of r-2 There name are wrongly typed here Hence corrected) ..VERSUS.. RESPONDENTS Ori. Plaintiff 01. Shri Daulat w/o Tukaram Chakole, Aged about 45 Years, Occupation – Cultivator, Resident of: Dighori Naka, Nagpur; 02 Shri Nilkanth s/o Tulsiramji Sawarkar, Age Major, Occupation – Cultivator, Resident of Pipla Dak Bungalow, Tehsil – Saoner, District – Nagpur; died during the pendency but his legal representatives were not brought on record, he gifted away the property in the name of Shri Haribhau s/o Parasram Kalwatkar, Aged about 50 years, Occupation – Cultivator; 2A Rahul s/o Haribhau Karvatkar, Aged about 20 years, Occu- Private business, R/o Azamshah Chowk, infront of Ishwar Khante’s house, Juni Mangalwari, Nagpur. 43. SA 339.13.odt 6 2B Mrs. Sarika w/o Ajay Chafale, Aged about 23 years, Occ-household, R/o Rampeth, near Jagannath Swami, Om Furniture Mart, Rampeth, Nagpur. 2C Mrs. Maya Abhay Lambat, Aged about Major, Occ. Household, R/o Manewada Road, Shrinagar, Plot No.203, in the house of Shri Barirao Lambat, Nagpur. (LRS of respondent No.2) 03 Shri Chandu alias Janardan s/o Parasram Kalwatkar, Age Major, Occupation – Cultivator, Resident of Mangalwari, Nagpur; (Ref. to Reg.(J) order dt. 1.09.2016 Appeal is abated against R.No. 3.) (R.3 is deleted as per Court order dt. 10.2.17) 04. Shri Dnyaneshwar w/o Vitthalrao Chamat, Aged about 58 years, Occupation – Business, Resident of: Sakkardara Chowk, Om Nagar, Nagpur. 05. [Smt. Anjanabai w/o Vitthalrao Chamat, Aged about 75 Years, Occupation – Household Affairs, Resident of: Sakkardara Chowk, Om Nagar, Nagpur (Dead), Abated] (Ref to Reg. (J) order dt. 14.8.25 Appeal is abated against R.5. ) 06 Smt. Satyabhamabai w/o Wamanrao 43. SA 339.13.odt 7 Balpande, Aged about 50 Years, Occupation – Household Affairs, Resident of: Sakkardara Chowk, Om Nagar, Nagpur; (Deleted as per Court order dt. 21.11.2014) 07 Smt. Bebitai alias Wanmala w/o Durgadas Telrandhe, Age Major, Occupation – Household Affairs, Resident of: Plot No.25, Pragati Colony, Dighori, Umred Road, Nagpur, died through her legal representatives: 7-A [Shri Durgadas s/o Mahadeorao Telrandhe, Age Major, Occupation -Nil Abated] (Ref to Reg.(J) order dtd. 14/8/25 Appeal is abated against R.7.-A) 7-B Shri Mahendra s/o Durgadas Telrandhe, Age Major, Occupation – Not known; 7-C Shri Prashant s/o Durgadas Telrandhe, Age Major, Occupation – Not Known; 7-D Miss Pranjali d/o Durgadas Telrandhe, Age Major, Occupation – Age Major, Occupation – Not Known; 7-E Shri Rajashri d/o Durgadas Telrandhe, Age Major, Occupation – Not known; All residents of Plot No.25, Pragati Colony, Dighori, Umred Road, Nagpur; (Reff to Reg. (J) Order dtd. 01/09/2016, Appeal is dismissed in default against 43. SA 339.13.odt 8 R.No.7-D and 7-E) 08. Smt. Shilabai w/o Mulchand Umathe, Age Major, Occupation-Household, Affairs, Resident of: Juni Mangalwari, Near Gandale’s Wada, Nagpur; (Deleted as per Court order dt. 21.11.2014) 09. Shri Vishwanath s/o Mahadeorao alias Lahanuji Chamat, Age Major, Occupation – Nil, Resident of Tiranga Chowk, in front of Sangam Talkies, Nagpur (Dead), through is legal representatives: 9-1. Shri Madhukar s/o Vishwanath Chamat, Age Major, Occupation- Not Known, Resident of Near Sangam Talkies, by the side of Shri Shirbhate’s Hospital Plot No.377, Ganesh Nagar, Nagpur; 9-2. Shri Sanjay s/o Vishwanath Chamat, Age Major, Occupation- Not known, Resident of Sangam Talkies, by the side of Shirbhate’s Hospital, Plot No.377, Ganesh Nagar, Nagpur; 9-3. Shri Eknath s/o Vishwanath Chamat, Age Major, Occupation – Not known, Resident of Tirangamata Chowk, Plot No.19, Om Nagar, Nagpur; 9-4. Shri Sushilabai w/o Manohar Narad, Age Major, Occupation – Household Affairs, Resident of Wathoda, Behind Ice Factory, Wathoda, Nagpur; 43. SA 339.13.odt 9 9-5. Smt. Bebi w/o Ramdas Karemore, Age Major, Occupation – Not known, Resident of Sakkardara, Near Vitthal Rukhmai Temple, Nagpur; (Ref. to Reg.(J) Order dtd. 01/09/2016 Appeal is dismissed against R.No.9-5) 9-6. Mrs. Mala s/o Krushnarao Hirde, Age Major, Occupation-Not known, Near Dashputre’s Dawakhana, Near Majjid, Om Nagar, Nagpur; 9-7. Mrs. Kunda w/o Vijay Maske, Age Major, Occupation – Not known, Resident of Katol, Behind Grain Market, Katol, Tehsil – Katol, District-Nagpur; (Deleted vide Court’s order dt. 22.11.14) 9-8. Mrs. Mina w/o Omprakash Raut, Age Major, Occupation-Household Affairs, Resident of Hasanbag, Near Police Chowky, Plot No.1206, New Nandanwan, Nagpur (Deleted vide Court’s order dt. 22.11.14) ------------------------------------------------------------------------------------------------------------------------------------ Mr. Anand Deshpande, Advocate for Appellants. Mr. A. Z. Jibhkate, Advocate for Respondent No.1, 2(i) and 2(ii) Mr. P. K. Mishra, Advocate for Respondent No. 9-1 to 9-4 ------------------------------------------------------------------------------------------------------------ CORAM : ROHIT W. JOSHI, J. DATE : 17.10.2025 ORAL JUDGMENT : 43. SA 339.13.odt 10 1) Heard. 2) The present Second Appeal is preferred against the judgment and decree dated 27.04.2006, passed by the learned 19th Joint, Civil Judge, Junior Division, Nagpur in Regular Civil Suit No. 100 of 1991, whereby the suit for partition and separate possession filed by the present respondent Nos.1 to 3 came to be decreed as also, the judgment and decree dated 17.04.2013, passed by the learned District, Judge-7, Nagpur in Regular Civil Appeal No.237/2006, whereby the judgment and decree passed by the learned Trial Court was confirmed. 3) The plaintiffs had purchased suit properties from two individuals namely Vitthal and Vishwanath, who in turn had purchased the same from one Beniram. 4) The alienation of the suit property by Beniram in favour of vendors of the plaintiffs was challenged by his sons after attaining majority. It is not in dispute that the said litigation was decided in favour of the minor sons, up to the Hon’ble Supreme Court. The Hon’ble Supreme Court has held that the alienation by Beniram was not for the legal necessity 43. SA 339.13.odt 11 of the family and as such, the sale deed dated 19.07.1954 was not binding on his minor sons. It was also held that the purchasers were entitled only to the share of Beniram in the suit properties and that they were entitled to file a suit for partition and separate possession with respect to the same. 5) Accordingly, the plaintiffs filed regular Civil Suit No.100 of 1991, seeking partition and separate possession. The said suit, as mentioned above, came to be decreed vide judgment and decree dated 27.04.2006. The learned Trial Court has held that the plaintiffs are entitled to 1/7th share in the suit property and accordingly has passed a decree for partition and separate possession with respect to the said 1/7th share. The learned First Appellate Court has dismissed the appeal preferred by the defendants confirming the said decree. 6) Aggrieved by the aforesaid concurrent decrees, the present second appeal came to be preferred. The following substantial questions of law were framed in the appeal vide order dated 21.11.2015. 43. SA 339.13.odt 12 “(1) Whether the respondents 1, 2-A and 2-B/original plaintiffs can claim decree for partition and possession of 1/7th share in the suit land on the basis of the sale deed executed by Vitthal and Vishwanath in their favour, when the sale deed executed by Beniram in favour of Vitthal and Vishwanath in 1954 has been held to be invalid by the Hon’ble Supreme Court in the judgment given in Civil Appeal No.380(N) of 1980? (2) Whether the leave granted by this Court to alieness to file separate suit for partition and possession, as per the judgment given in First Appeal No.117/1968 enables the respondents 1, 2-A and 2-B/original plaintiffs to file the civil suit, though the judgment passed by this Court in First Appeal No.117/1968 has merged in the judgment given by the Hon’ble Supreme Court in the Civil Appeal No.380(N) of 1980?” 7) As regards the first substantial question of law, perusal of the judgments by this Court and the Hon’ble Supreme Court in the earlier round of litigation will demonstrate that the sale deeds in favour of Vitthal and 43. SA 339.13.odt 13 Vishwanath, the vendors of the plaintiffs were held valid to the extent of share of Beniram. Beniram had 1/7th share in the suit properties. Thus, the plaintiffs are entitled to receive 1/7th share in the suit property. SUBSTANTIAL QUESTION OF LAW NO.2. 8) The judgment of the High Court will merge with the judgment of the Hon’ble Supreme Court. However, perusal of the judgment of the Hon’ble Supreme Court will demonstrate that the judgment passed by this Court in the First Appeal to the extent it holds that sale deed was valid to the extent of share of Beniram is maintained by the Hon’ble Supreme Court. 9) In that view of the matter, both the substantial questions of law, on which the appeal is admitted are required to be answered in favour of respondents/plaintiffs and against the appellants/defendants. The Second Appeal is, therefore, dismissed. Costs will follow the cause. (ROHIT W. JOSHI, J.) Tanmay...