RAMA SHIRVOIKAR Vs. PARVATI RAJARAM GAUNS

JUDGEMENT

(1.) Heard Mr. A.D. Bhobe, learned Counsel appearing for the appellant. None for the respondents though served.

(2.) The above appeal came to be admitted by an order date 14/5/2007, on the following substantial questions of law :

(3.) Mr. A. D. Bhobe, learned Counsel appearing for the appellant has pointed out that the learned Lower Appellate Court was not justified to pass the impugned order as, according to him, once in an inquiry under Order XXII, Rule 5 of the Code of Civil Procedure the appellant was accepted to be the legal heir of the original defendant, the question of readjucation on the basis of the amended pleadings would not arise at all. The learned Counsel points out that the appellant was adopted by the original defendant and consequently was entitled to be the legal heir to be brought on record of the deceased defendant. The learned Counsel further submits that when such an application was filed by the appellant, an inquiry was conducted by the learned Trial Judge and after appreciating the evidence brought on record by an order dated 25/1/2006, the appellant was accepted as the legal representative of the deceased defendant. The learned Counsel further points that the suit was for injunction and declaration that the survey records are erroneous and in such a suit, the question of reexamining whether the appellant was the legal heir of the deceased or not would not arise. The learned Counsel further submits that in such a suit, the aspect of possession of the disputed portion is material and consequently, the respondents are not entitled for any relief sought in the suit. The learned Counsel has taken me through the impugned order to point out that the learned Judge has erroneously allowed the application for amendment filed by the respondents and remanded the matter to the learned Trial Judge to decide the matter afresh. The learned Counsel further submits that in view of the said order passed by the learned Trial Judge dated 25th January, 2006 which has become final, any findings on the basis of the amended pleadings would be res judicata. The learned Counsel, as such, submits that the substantial questions of law be answered in favour of the appellant.