PRABHAVATI PRABHAKAR NAIK Vs. ASHA PRAKASH PANANDIKAR
LAWS(BOM)-2017-7-280
HIGH COURT OF BOMBAY
Decided on July 07,2017

Prabhavati Prabhakar Naik Appellant
VERSUS
Asha Prakash Panandikar Respondents

JUDGEMENT

F.M. Reis, J. - (1.) Heard Mr. S. S. Kantak, learned Senior Counsel appearing for the appellant, Mr. C. A. Coutinho, learned counsel appearing for the respondent nos. 3 and 4 and Mr. S. D. Padiyar, learned counsel appearing for the respondent nos. 5 and 6.
(2.) The above appeal came to be admitted by an order dated 15.09.2011 on the following substantial questions of law. (i) Whether the Decree in Regular Civil Suit No.171/1981/D is not binding on the appellant as the appellant was not a party to the said suit ? (ii) Whether the District Judge could have discarded 'EXHIBIT 49" ( Sale Deed dated 9.2.1977 ) which was duly proved in evidence on the ground that there are no pleadings about the contents of the said Sale Deed in the plaint ?
(3.) Mr. S. S. Kantak, learned Senior Counsel appearing for the appellant has assailed the impugned judgment on the ground that the earlier suit filed by the respondent nos. 3 and 4 was against the husband of the appellant inter alia for demolition of a structure in plot No.6 which was being put up by the husband of the appellant. The learned Senior Counsel further pointed out that the suit has been decreed and the husband of the appellant was directed to demolish such structure. It is further pointed out that when the matter came for execution, as the appellant, who was not a party to the said suit, filed the suit inter alia on the ground that there was a fraud committed by the respondent nos. 3 and 4 in obtaining a collusive decree against the husband of the appellant. It is further pointed out that as the decree passed against the husband of the appellant was not binding on the appellant, the appellant filed a suit inter alia to declare the said decree to be not binding on the appellant and for other reliefs. The learned Senior Counsel further submitted that at that stage the husband of the appellant had an agreement for sale executed by the predecessor of the respondent nos.1 and 2 to purchase the subject plot no.6 which led to the execution of the sale deed dated 14.08.2000. It is further pointed out that the respondent nos. 3 and 4 are relying upon the sale deed executed in the year 1973 of the plot no.6 which according to the learned Senior Counsel has nothing to do with the plot no.6 agreed to be purchased by the husband of the appellant. It is further pointed out that the respondent nos. 3 and 4 have erroneously depicted the plot no.6 in plot no.7 agreed to be purchased by the husband of the appellant. The learned Senior Counsel further pointed out that it is clearly mentioned in the agreement executed in favour of the husband of the appellant that the high tension wire was proceeding across the plot agreed to be purchased by the husband of the appellant. It is further submitted that the subdivision plan on record clearly shows that such high tension wire is located in the plot agreed to be purchased by the husband of the appellant. The learned Senior Counsel has thereafter taken me through the judgment passed by the learned Lower Appellate Court to point out that the learned Judge has erroneously appreciated the material on record to come to the conclusion that the decree against the husband of the appellant was binding on the appellant herein. It is further pointed out that based on the said agreement, the appellant is occupying the structure in the subject plot and as such grave injustice would occasion to the appellant in case any relief is granted in the above proceedings. The learned Senior Counsel has thereafter minutely taken me through the impugned judgment and pointed out that the learned Lower Appellate Court has erroneously come to the conclusion that the subject plot occupied by the appellant is in a plot purchased by the respondent nos. 3 and 4 way back in the year 1973. The learned Senior Counsel has thereafter taken me through the impugned judgment as well as the pleadings of the parties to point out that the high tension wire was going through plot no.6 and not through the plot no.7 as claimed by the respondents herein. The learned Senior Counsel as such points out that the substantial questions of law be answered accordingly.;


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