(Prayer: This RFA is filed under Section 96 read with Order 41 Rule 1 and 2 of CPC 1908, against the judgment and decree dated 29.03.2019 passed in O.S.No.15/2013 on the file of the Senior Civil Judge and Judicial Magistrate First Class, Bilagi, partly decreeing the suit filed for declaration and partition and separate possession.

This RFA is filed under Section 96 read with Order 41 Rule 1 and 2 of CPC 1908, against the judgment and decree dated 29.03.2019 passed in O.S.No.15/2013 on the file of the Senior Civil Judge and Judicial Magistrate First Class, Bilagi, partly decreeing the suit filed for declaration and partition and separate possession.)

Oral Judgment

R. Devdas, J.

1. These two appeals arise out of the judgment and decree dated 29.03.2019 passed in O.S.No.15/2013 on the file of the learned Senior Civil Judge and JMFC, Bilagi. Therefore, the appeals were clubbed, heard together and are being disposed of by this common order.

2. The suit is filed by two of the daughters of late Sri.Hanmantrao Ghorpade seeking partition and separate possession of the suit schedule properties; to enquire for future profits from the date of the suit till delivery of possession under Order 21 Rule 12(1)(c) of the CPC. The trial court held that the burden is on the plaintiffs to prove that the suit schedule properties are the joint family properties and that the plaintiffs are having a share in the suit schedule properties. It is noticed that the defendants have only filed written statement, but have failed to enter into the witness box to disprove the case of the plaintiffs. Defendant Nos.8 and 9 are the subsequent purchasers.

The trial court therefore held that even though the plaintiffs have not produced any documentary evidence to show that the suit schedule properties are joint family properties, nevertheless, defendant Nos.1 and 2 in their written statement have pleaded that there was a prior partition in the year 1984 and they have succeeded to the suit schedule-A properties and that item No.1 in schedule-B was purchased by their father in the year 1999 and therefore, the same is self-acquired property of their father, and during his lifetime, on submergence of the said property, three sites were allotted to their father and defendant Nos.1 and 2, i.e., item Nos.2, 3 and 4 in schedule-B, which were sold in favour of defendant Nos.8 and 9 in the years 2011 and 2012, the same is not available for partition. Nevertheless, since defendant Nos.1 to 7 did not step into the witness box to substantiate their contention, the trial court has proceeded to decree the suit filed by the plaintiffs.

3. Learned counsels for the appellants would therefore submit that an opportunity should be given to defendant Nos.1 to 7 to substantiate their contentions raised in the written statement by allowing them to enter the witness box and make themselves available for cross- examination at the hands of the plaintiffs.

4. Having heard the learned counsels for the appellants, learned counsel for the respondents/plaintiffs and on perusing the appeal papers, this court is of the considered opinion that defendant Nos.1 to 7 should be given an opportunity to enter the witness box and after their examination, they should be available for cross- examination at the hands of the plaintiffs. Accordingly, this court proceeds to pass the following:

ORDER

          i) The appeals are allowed in part while imposing cost of Rs.5,000/- on the appellants in RFA No.100281/2019, which shall be paid to the plaintiffs on the first date of hearing on remand.

          ii) The impugned judgment and decree dated 29.03.2019 passed in O.S.No.15/2013 on the file of the Senior Civil Judge and JMFC, Bilagi is hereby quashed and set aside only to enable defendant Nos.1 to 7 to enter the witness box, examine themselves and thereafter be available for cross-examination at the hands of the plaintiffs. Needless to say that, if the plaintiffs also want to lead further evidence, they shall be permitted to do so.

             iii) Parties are directed to appear before the learned Senior Civil Judge and JMFC, Bilagi on 05.01.2026 without waiting for further notice. Ordered accordingly.