VIMALBAI GANGARAM SHINGADE Vs. BHAGIRTIVBAI RAKHMAJI WAYSE

JUDGEMENT

(1.) Both the aforesaid proceedings have been filed by the appellants Vimalbai and Mathurabai, who are the original defendant Nos.1 & 2 in RCS No.287 of 1991 and respondent Nos.1 & 2 in RCA No.5 of 2012, against present respondent Nos.1 to 5, who are the plaintiffs in the aforesaid suit and respondent Nos.7 to 12, who are the interveners of the aforesaid appeal. Respondent No.6 is original defendant No.3 in the aforesaid suit. The Writ Petition No.1250 of 2018 is filed against the order below Exhibit-30, dtd. 31/08/2017 passed by the learned first appellate court i.e. District Judge-1, Osmanabad in RCA No.5 of 2012 whereby respondent Nos.7 to 12 have been added as respondent Nos.4 to 9 in aforesaid appeal. Similarly, Appeal from Order No.57 of 2017 has been filed by original defendant Nos.1 & 2, challenging the final judgment and order passed by the learned first appellate court on 06/10/2017 whereby the original judgment and decree in RCS No.287 of 1991, was set aside and matter was remanded back to the trial court to decide the said suit afresh by permitting the present respondent Nos.7 to 12 -interveners to file their written statement.

(2.) The learned counsel for the appellants as well as the petitioners in both the proceedings vehemently argued that there is a long history of litigation between the parties and the present respondent Nos.1 to 5, who are original plaintiffs claiming their right through one Rakhamaji, have already failed to prove their right over the suit property i.e. land Gut No.105, admeasuring 7 acres 2 R, situated at Adhala, Tq. Kallam, District : Osmanabad in RCS No.287 of 1991. Even Rakhamaji had also failed to establish his right over the suit property in the civil litigation initiated by him. According to him, Rakhamaji had failed up to this court and the decree in earlier RCS No.10 of 1970 attained finality. According to him, the present interveners, who are respondent Nos.7 to 12, are in fact claiming right in the suit property against the present appellants / petitioners through one Sahebrao and they had in fact filed separate suit for the said cause, which got dismissed due to their own negligence. He further pointed out that the learned first appellate court should not have remanded the matter to the trial court on the ground of giving opportunity to present respondent Nos.7 to 12 - interveners as the decree in the aforesaid suit was in respect of dispute between the appellants / petitioners and the present respondent Nos.1 to 5 - original plaintiffs.

(3.) On the contrary, the learned counsel for the respondent Nos.7 to 12 - interveners supported the judgment of the learned first appellate court in RCA No.5 of 2012 and claimed that since the interveners are having independent right, they must be given an opportunity to contest their claim on merit.