JUDGMENT
S.T. Kharche, J.
1. The original plaintiff Malanbee wd/o Sheikh Gafoor by invoking the jurisdiction of this Court under Section 100 of the Code of Civil Procedure has filed this appeal challenging the judgment and decree dated 28-3-1990 passed by the Additional District Judge in Regular Civil Appeal No. 124 of 1985, whereby the appeal was dismissed and the judgment and decree passed by the trial Court on 31-1-1985 declaring that the plaintiff is entitled to 7/8th share in the field property mentioned therein and directing partition through the Collector in view of Order 20, Rule 18 read with Section 54 of the Code of Civil Procedure is set aside and the appellate Court dismissed the regular civil suit filed by the plaintiff seeking share in the connected Survey No. 158/1, admeasuring 4 acres 31 gunthas after the amendment in the plaint.
2. This litigation has a chequered history. One Sheikh Sardar had executed a Will dated 2-2-1916 bequeathing his property to his three daughters before his death. Sheikh Sardar died on 4th April, 1928. He had two wives, namely Hayatbi, who predeceased him and Bunabai. Sheikh Sardar died on 4-4-1928 leaving behind him his widow Bunabai and one daughter Karimbi only. The two daughters Bunabi and Aminabi predeceased Sheikh Sardar. Karimbi died on 15-7-1935 leaving behind her daughter Malanbee. Defendants No. 1 Waheed Mirza is the son of brother of Bunabai w/o Sheikh Sardar and the dispute about partition started between them. The plaintiff Malanbee filed suit for partition and separate possession of her 7/8th share in the property based on the Will of her father Sheikh Sardar. The subject-matter of the suit was the agricultural field survey No. 158/2 and agricultural field survey No. 134. Defendant No. 1 claimed that Bunabai had gifted the agricultural land by execution of gift-deed dated 23-4-1951 and, therefore, he is entitled to retain the possession.
3. On the death of Sheikh Sardar, Karimbi filed a suit against Bunabai for partition and possession of her 7/8th share in the property disclaiming the Will and claiming as a daughter and entitled to take that property by inheritance. Bunabai in that suit contended that she was entitled to retain that property under the Will and was also entitled under the Mohammaden Law to hold on its possession until the dower was paid. She claimed in the alternative her 1/8th share by inheritance excluding 1/3rd under the Will absolutely.
4. The suit filed by Karimbi was decreed in her favour on 29-3-1930 by which the Court held that the third share of the property was reserved very immediately falling upon the death of Sheikh Sardar; that Bunabai was entitled to remain in possession of 5/12th share of the properties which were the subject matter of that suit; 1/8th being her share as share under Mohammaden Law and 1/3rd reserved to her during her life time under the Will. Remaining 7/12th share was declared to be the share to which Karimbi was entitled. In execution of that decree, Karimbi was allotted survey No. 134 while Bunabai was allowed possession of survey No. 158/2. Karimbi died on 15-12-1935 leaving behind her daughter plaintiff Malanbee. Bunabai died on 31-12-1961 and the present suit was filed by Malanbee on 9-2-1965 claiming to be entitled to the property left behind by Karimbi, namely whole survey No. 158/2.
5. The defendant Waheed Mirza claimed that Karimbi during her life time had gifted this property to him and, therefore, he was entitled to the said property. Malanbee in her plaint referred to the suit filed by Karimbi in the year 1929, being Civil Suit No. 74 of 1929. There were some other pleas raised by the defendant Waheed Mirza. The learned trial Judge decreed the plaintiff’s suit in its entirety and being aggrieved by that judgment the defendant Waheed Mirza carried appeal to the District Court. The learned Assistant Judge on hearing the learned counsel for the parties in Civil Appeal No. 164 of 1966, reversed the decree passed by the trial Court, allowed the appeal and set aside the decree passed by the trial Court. He did not, however, dismiss the suit of the plaintiff. Being aggrieved by the judgment and decree of the appellate Court, Second Appeal No. 253 of 1968 was filed by the present plaintiff Malanbee. This Court by the order dated 27-2-1980 set aside the decree passed by the appellate Court and consequently decreed the suit of the plaintiff with the modification that there will be a decree for partition in favour of Malanbee. The trial Court was directed to determine from out of survey No. 158/2 what would be a proper share ascribable to Bunabai representing her 1/8th share of the whole estate left behind by Sheikh Sardar. After determining her share in Survey No. 158/2, the trial Court was directed to pass a decree for partition and possession of the remaining property from out of survey No. 158/2 in favour of Malanbee. This whole property was found to be survey No. 158/2 and 134. The trial Court was also directed to take into consideration for the calculation purpose these two agricultural fields, namely survey No. 158/2 and 134 from which it was to be found out the 1/8th share in the whole. The plaintiff was held to be entitled to mesne profits from the date of decree which was passed by the trial Court. However, there was no order as to costs.
6. Thereafter the plaintiff approached the trial Court and filed an application for amendment in the year 1982 wherein it was stated that there was a bona fide mistake on her part in mentioning Survey No. 158/2 which was incorrectly mentioned, whereas the correct survey No. is 158/1 admeasuring 4.31 acres. The defendant filed consequential return and the parties again adduced evidence before the trial Court after this application was allowed by the trial Court. The trial Court on consideration of the evidence adduced before it has recorded finding that the plaintiff Malanbee is entitled to 7/8th share and the defendant is entitled to 1/8th share in field survey No. 158/2 and survey No. 134 of village New Akola and they are entitled for their respective share to the extent of 3 acres 271/2 gunthas in Survey No. 158/2 and 3 acres 36 gunthas in survey No. 134 and 1/8th share of the defendant coming to 1 acre 31/2 gunthas in both the above mentioned fields.
7. The trial Court also directed that the possession of respective shares be delivered through the appointment of the Collector as is required under Order 20 Rule 18 read with Section 54 of the Code of Civil Procedure with further direction regarding enquiry into future mesne profits. This judgment and decree dated 31-1-1985 passed by the trial Court was challenged before the District Court. The learned Additional District Judge on consideration of the facts and circumstances and on hearing the parties has recorded the finding that the decree passed by the trial Court in respect of field Survey Nos. 134, 158/2 and 158/1 was not legal and correct. Consistent with these findings he, set aside the judgment and decree passed by the trial Court and dismissed the suit in its entirety. This is how the plaintiff Malanbee is before this Court in second appeal.
8. Mr. Chandurkar, learned counsel for the plaintiff, contended that the amendment was made in the plaint in the year 1982 and the trial Court allowed the amendment because there was a bona fide mistake in mentioning survey No. 158/1, which was described as survey No. 158/2 in the plaint. He contended that by the said amendment the identity of the property has not been changed because survey No. 158/1 which is a correct survey number is admeasuring 4.31 acres: He contended that the field survey No. 158/2 is owned by Ramkisan Balkisan and others and the said field is admeasuring 13.36 acres which cannot obviously be the subject matter of the partition between Malanbee and the defendant No. 1 Waheed Mirza. He contended that defendant No. 1 admitted in cross-examination after the remand of the case to the trial Court that he is the owner of survey No. 158/1 and not that of survey No. 158/2. He contended that in the circumstances both the Courts below have committed an error in not taking into consideration the factual aspect that survey No. 158/1 is the subject matter of partition and, therefore, the impugned judgment has resulted into miscarriage of justice. He contended that though the plaintiff has established that she is entitled to partition and possession of separate share in the property left by her mother Karimbi, she is not getting the fruits of the decree and consequently the impugned judgment passed by both the Courts below cannot be sustained in law. He, therefore, contended that the matter may be remanded to the trial Court for fresh decision according to law with liberty to implead the vendee.
9. Mr. Chandurkar further contended that Sakharam died during the pendency of the present appeal and the appeal as against him has already abated. He contended that respondent No. 3 Sahadeo Tipre is added as a party to this second appeal by way of amendment because he was stated to be the tenant of deceased Sakharam Udebhan Kadu to whom the field survey No. 158/1 is said to have been sold on 7-5-1974.
10. Mr. Saboo, learned counsel for the defendants, contended that the agricultural field survey No. 158/1 admeasuring 4 acres 31 gunthas was sold by defendant No. 1 to Sakharam Udebhan Kadu by virtue of the sale-deed dated 7-5-1974, who was impleaded as a respondent in the First Appeal. He contended that Malanbee sought amendment in the correction of survey number in the year 1982 and, therefore, without seeking any relief for setting aside the sale-deed, the plaintiff would not be entitled to any share on partition in the said field. He contended that the plaintiff ought to have filed fresh suit for setting aside the sale-deed and for claiming the reliefs which are sought by her in the said suit. He contended that the appellate Court was perfectly justified in recording the finding that no executable decree could be passed in favour of the plaintiff and, therefore, there was no alternative except to dismiss the suit. He, therefore, contended that there is no merit in the present appeal and the same may kindly be dismissed.
11. This Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. It is not in dispute that Malanbee had instituted a suit for partition and separate possession of her share and after remand of the matter to the trial Court by this Court by the order dated 27-2-1980 passed in S.A. No. 253 of 1968, the plaintiff Malanbee had filed an application for amendment of the plaint.
12. The contention of the plaintiff in the amendment application was that the subject matter of the suit was described as field survey No. 158/2 of mouza Naya Akola and the said survey number has been mentioned by mistake. The correct survey number of the field is 158/1 and not 158/2. The area of the field is correctly mentioned as 4 acres 31 gunthas. Sheikh Sardar of Naya Akola never owned survey No. 158/2. He was the owner of survey No. 158/1 of Naya Akola. Survey No. 158/2 of Naya Akola was admeasuring 13 acres 36 gunthas in area and was owned by Ramkisan Balkisan and others and that this survey number is now owned by Madanmohan Ramnath as would be seen from the copy of the record of rights. It was contended that Sheikh Sardar could not by his Will bequeath survey No. 158/2 of Naya Akola to his daughters and he could bequeath only survey No. 158/1 by his Will to his daughters. Sheikh Sardar could grant and had granted life interest in the field survey No. 158/1 to his wife which fact has been recorded in the record of rights. That Boonabi made a gift of the survey No. 158/1 in favour of the defendant Waheed Mirza which was challenged in the suit. That the entry of the said gift in favour of the defendant has also been made in the record of rights of survey No. 158/1. Thus the claim of the plaintiff is in respect of survey No. 158/1 and, therefore, the plaintiff Malanbee sought the proposed amendment which is as under :
“(i) Delete the figure 158/2 in para 1 of the plaint and substitute the figure 158/1 in its place.
(ii) Delete the figure “158/2″ in the prayer Clause (a) in the plaint and substitute the figure 158/1 in its place.”
13. It would reveal that this amendment application was allowed by the trial Court on 1-9-1982 and thereafter the amendment was carried out in the plaint. Then the parties adduced evidence on record and the defendant Waheed Mirza was cross-examined. Waheed Mirza admitted in his cross- examination recorded on 10-7-1984, after the remand, as follows :
“After filing of the suit Malanbee did not come to me. After filing of the suit relation with Malanbee became strained. Bunabai was holding Survey No. 158/1 only.” (Underline supplied for emphasis).
It would be obvious that there was a bona fide mistake on part of the plaintiff in mentioning the survey number as 158/2 in the plaint and the trial Court has simply ignored this bona fide mistake committed by the plaintiff. When the agricultural land bearing survey No. 158/2 cannot be a subject matter for partition between the parties, the trial Court could not have granted decree for partition of survey No. 158/2 which is owned by some body else and the area of survey No. 158/2 is 13 acres 36 gunthas, whereas the area of survey No. 158/1 is 4 acres 31 gunthas. Even the appellate Court has lost sight of the aforesaid facts and circumstances and has erroneously dismissed the suit by observing in para 14 as under:
“As no executable decree can be passed in this suit in favour of the plaintiff for the reasons given above, the only remedy available with this Court is to dismiss the suit of the plaintiff and I accordingly pass the following order.
Order
The appeal is dismissed.
The judgment and decree passed by the trial Court on 5-2-1985 is hereby set aside and the suit of the plaintiff, i.e. Reg. C.S. No. 91/65 is hereby dismissed.
In the circumstances of the case, the appellant and respondent No. 1 should bear their own costs and the appellant should pay the cost of respondent No. 2.
A. D. J.
28-3-1990.
14. The impugned judgment passed by the Additional District Judge, therefore, has resulted into miscarriage of justice and this Court is of the considered opinion that ends of justice would be met if the matter is remitted to the trial Court. Therefore, the judgments and decree passed by the Courts below are set aside and the matter is remitted to the trial Court. The plaintiffs are permitted to implead respondent No. 3 in the suit. The trial Court shall decide the matter expeditiously, preferably within six months from the date of receipt of the order of this Court, on its own merits, in accordance with law and in the light of the observations mentioned above so far as survey No. 158/1 only is concerned. Parties are directed to appear before the trial Court on 19-4-2004. Record and proceedings be sent back to the trial Court immediately without any delay.