SA 4.2007. judg.odt

1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

SECOND APPEAL NO.4 OF 2007

APPELLANTS

L.RS. Of Pltff. No.1(C)

Smt. Vimal Hemant-kumar

Mohabe died on 30.03.2000

[1)Shri Hemantkumar s/o Shankarlal

Mohabe, aged about 73 years,

Occupation: Retired teacher, R/o.

Akare’s House Zenda Chowk,

Chitnispura, Mahal, Nagpur ] - A-1

Dead

2)Smt. Sangita w/o Rishikesh

Pashine, aged about 38 Yrs.

Occupation: Housewife R/o.

Grashim Staff Colony, Birla Gram,

Nagda-456331.

3)Shri. Nitin S/o Hemantkumar

Mohabe, aged about 34 years,

Occupation: Service.

4)Shri Nilesh s/o Hemantkumar

Mohabe, aged about 31 years.

Occupation: Teacher.

Both 3 and 4 R/o. Akara’s House,

Zenda Chowk, Chitnispura, Mahal,

Nagpur.

...VERSUS...

RESPONDENTS

Ori. Deft. No.2

:1.Subhash Mohanlal Ujaoney, (since

deceased) through his L. Rs.

Ori. Def. No.1

Smt. Kalawati Mohanlal Ujaoney

(also since deceased),Through her

L. RS.

1.Shobhiya w/o. Subhash Ujaoney,

aged about 56 years, Occu.

Housewife. 2026:BHC-NAG:3247

SA 4.2007. judg.odt

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2.Sheetal w/o. Prashant Nashine,

aged about 32 Yrs. Occupation:

Housewife.

3.Sushant s/o. Subhash Ujaoney,

aged about 31 years,Occupation:

not known.

All R/o. Kunjivihar, near Coffee

House Square, Dharampeth,

Nagpur.

Ori. Deft. No.3

4.Manoharlal s/o. Mohanlal Ujaoney,

aged 56 years, Occupation: Service.

Ori. Deft. No.4

5.Jaiprakash s/o. Mohanlal Ujaoney,

aged about 49 yrs. Occupation:

Service,

Ori. Deft. No.5

6.Ashutosh Alias Rajjain S/o.

Mohanlal Ujaoney, Aged about 38

years, Occupation: Service,

Nos. 4 to 6, R/o. Of Dharampeth,

Nagpur

Ori. Deft. No.6

Smt. Ashalata w/o. Prakash

Prakash Mohabe (since deceased),

through her L. RS.

7.Prakashchand s/o. Shyamlal

Mohabe, aged about 80 yrs.

Occupation: retired.

8.Sagar s/o. Prakashchand Mohabe,

aged about 46 yrs. Occupation:

Service,

Both R/o. 97, Kailash Park, Near

Geeta Bhavan, Indore (M.P.)

SA 4.2007. judg.odt

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9.Nita w/o. Ranjit Katakwar, Aged

about 30 yrs. Occupation:

Housewife R/o. Pragati Colony,

Station Road, Bhandara.

10.Smt. Mamta w/o. Anil Pashine,

aged about 48 yrs. Occupation:

Housewife, R/o. K-10, South

Extension Park one, New Delhi.

Ori. Deft. No.7

11.Ushalata Shailesh Mohabe, Aged

about 59 Yrs. Occupation:

Housewife, R/o. Near S.T. Stand,

Bhilai, Tahsil and District: Bhilai.

Ori. Deft. No.8

12.Smt. Ruplata Santosh Pashine,

aged about 57 yrs. Occupation:

Housewife, R/o. near Railway

Station, Bhopal.

Ori. Deft. No.9

13.Smt. Premlata w/o Ramkumar

Gupta, aged about 58 yrs. Occu.

Housewife, R/o. Baroda, Tahsil and

Dist. Baroda (Gujarat)

Ori. Pltff. No.1(b)

14.Smt. Kamal w/o. Krishnakumar

Gupta, Aged about 68 yrs. Occ.

Household, R/o. C/o. Aditya

Gupta, Flat No. 8/2, Sanjay

Complex, Near Mata Mandir,

Bhopal – 462003 (M.P.)

L.R. of Ori. Pltff.

Mohabe, died on 30.03.2000

15.Smt. Nivedita w/o. Virendra Vimal

Hemantkumar Tarhate, aged about

38 yrs. Occupation: Teacher, R/o.

C/o. Surendra Kumar Tarhate,

Pandhrabodi, Ramnagar, Nagpur.

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Ori. Pltff. No.1(d)

16.Dr. Prabha w/o. Likhiram Malviya,

aged about 64 yrs., Occupation:

Medical Practitioner, R/o. 5, Buti

Layout, Rajnagar Chhaoni, Nagpur

– 440 013.

Ori. Pltff. No.1(e)

17.Smt. Malti w/o. Chandraprakash

Mahajan, Aged about 62 yrs.

Occupation: Household, R/o.

behind Sharda Talkies, Pushpkunj

Colony, Gorakhpur, Jabalpur (M.P.).

Ori. Pltff. No.1(f)

18.Ku. Mamta D/o. Narayanlal

Ujaoney, aged about 60 yrs.

Occupation: Household, R/o. C/o.

B.K. Nashine Stationpura,

Rajnandgaon (Chhatisgarh).

Ori. Pltff. No.1(g)

19.Smt. Maya w/o. Brijkishor Nashine,

aged about 58 yrs. Occupation:

Household, R/o. Stationpura,

Rajnandgaon, (Chhatisgarh).

Ori. Pltff. No.1(h)

20.Smt. Madhuri w/o. Anand

Kharabe, aged about 56 yrs. Occ.

Household, R/o. Patrakar Colony,

1/5, Near Maharajbagh Garden,

Amravati Road, Nagpur.

Ori. Pltff. No.1(i)

21.Smt. Alka w/o. P.N. Katakwar Aged

about 54 yrs. Occupation:

Household R/o. Sadoday Nest,

Mental Hospital square, Koradi

road, Nagpur-440013 (M.S.)

L.R. of Original Plff. No.1(j) Smt.

Sunita Jawaharlal Ujaoney.

22.Shri Raju s/o. Jawaharlal Ujaonoy,

aged about 45 yrs. Occupation:

Service, R/o. Manorama

Apartment, Near Mahalaxmi

SA 4.2007. judg.odt

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Apartment, Canal Road, Gokulpeth,

Nagpur-440010.

L.R. of Original Pltt. No.1(j) Smt.

Sunita Jawaharlal Ujaoney.

23.Smt. Renu w/o. Rahul Suhalka,

aged about 40 yrs. Occupation:

Household, R/o. 5

th

Floor

Gulmohar Colony, near Thakuar

Polytechnic College, Borivali,

Mumbai.

------------------------------------------------------------------------------------------------------------------------------------

Ms. S. R. Pashine, appellant in person (through V.C.)

Mr. V. V. Tekade, Advocate for Appellant No.3.

Mr. M. R. Joharapurkar, Advocate for the Respondent No.6.

------------------------------------------------------------------------------------------------------------

CORAM :

ROHIT W. JOSHI, J.

DATE OF RESERVATION :12.12.2025

DATE OF PRONOUNCEMENT 25.02.2026

J U D G M E N T :

1) Heard finally with consent of learned advocate for

the respective parties.

2) The present appeal is filed in order to challenge

judgment and decree dated 25.04.2006 passed by the learned

7

th

Ad-hoc Additional District Judge, Nagpur in Regular Civil

Appeal No.344 of 1998, whereby decree for partition and

separate possession passed by the learned 4

th

Joint Civil

Judge, Senior Division, Nagpur in Special Civil Suit No.204 of

1976 came to be reversed and the aforesaid suit for partition

SA 4.2007. judg.odt

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and separate possession came to be dismissed.

3) Vide order dated 27.08.2007, the appeal came to be

admitted on the following substantial question of law:-

“Whether a suit between the parties would be

barred by the provisions of res judicata, in view of

an arbitration award passed in proceedings

between the parties under the Arbitration Act ? ”

4) Thereafter another substantial question of law was

framed in the appeal vide order dated 03.11.2025, which

reads as under:-

“Whether the findings recorded by the

learned First Appellate Court that the suit for

partition was barred by limitation are legally

sound, having regard to the fact that the suit is

filed in the year 1973 and there appear to be

statements up to the year 1968 regarding the

property being joint?”

5) The suit property is an NIT Leasehold Plot bearing

No.287 situated at Dharampeth, Nagpur. The original

plaintiff and defendant were real brothers. They have

SA 4.2007. judg.odt

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obtained the suit property on lease from Nagpur

Improvement Trust, Nagpur (NIT), vide Lease Deed dated

14.07.1950. Both plaintiff and defendant have expired and

their legal representatives are contesting litigation.

6) It is not in dispute that initially there was a dispute

in the family in relation to the partition of the properties and

one Shri. L. M. Bhagwat, an Advocate at Bhandara was

appointed as arbitrator for effecting partition of the

properties between the brothers.

7) Initially, the suit was filed on 28.07.1973 and it was

registered as Civil Suit No.1212 of 1973. However, the

defendants had raised an objection with respect to pecuniary

jurisdiction, which was accepted and order of return of plaint

was passed, thereafter, the plaint was presented in the Court

of Civil Judge, Senior Division on 30.06.1976 and was re-

registered as Special Civil Suit No.205 of 1976.

8) It is the case of plaintiff that 02.10.1961, the

brothers arrived at mutual settlement for partition of the suit

property. The defendants disputed the said partition. The

plaintiff’s claimed decree for possession with respect to part

SA 4.2007. judg.odt

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of suit property which fell to his share as per arbitral award

and alternatively sought decree for partition and separate

possession.

9) The case of defendants is that the house property is

their exclusive property. They have admitted that Shri.

Bhagwat was appointed as Arbitrator for effecting partition of

the properties. They have contended that the agreement

dated 02.10.1961 was never implemented and have also

pleaded ignorance about such agreement arrived at before

the arbitrator. It was further contended that the plaintiff was

ousted from the suit property in the year 1960 itself and

therefore the suit filed on 28.07.1973 was barred by

limitation. The defendants further contended that the

arbitrator had instituted a suit being Special Civil Suit No.8 of

1964 to make the award rule of the Court as contemplated

under the Arbitration Act, 1940. It is contended that the

learned Trial Court had directed the plaintiff to pay deficit

stamp duty vide order dated 11.12.1964 on the arbitral

award. The plaintiff challenged the said order before this

Court in Civil Revision No.85 of 1965, which was withdrawn.

SA 4.2007. judg.odt

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It is stated that the order dated 11.12.1964 directing

payment of stamp duty was not complied with and the suit

came to be dismissed vide order dated 28.02.1968. The

contention of the defendants is that subsequent suit for

partition based on the same cause of action was not

maintainable since earlier suit, i.e., Special Civil Suit No.8 of

1964, was dismissed on account of failure on the part of

plaintiff to make compliance of order directing payment of

stamp duty on the arbitral award.

10) The learned Trial Court held that the agreement

dated 02.10.1961 between plaintiff and defendant was not

proved and further that the defendants had proved that the

said agreement was not acted upon. However, the learned

Trial Court held that the plaintiff and defendant had equal

share in the suit and has accordingly granted a decree for

partition and separate possession. It needs to be stated that

objection with respect to the suit being barred by limitation

came to be rejected by the learned Trial Court.

11) The legal representatives of original defendant

preferred appeal challenging the said judgment and decree

SA 4.2007. judg.odt

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for partition passed by the learned Trial Court. The appeal

came to be registered as Regular Civil Appeal No.344 of

1998. The learned First Appellate Court has allowed the

appeal on the ground that suit for partition was not

maintainable in view of dismissal of Special Civil Suit No.8 of

1964, which was filed to make arbitral award rule of the

Court and that the defendants had perfected their title by

adverse possession, which implied that the suit was barred by

limitation.

12) The present Second Appeal is preferred by legal

representatives of original plaintiff No.1(C), being aggrieved

by the decree passed by the learned First Appellate Court

allowing the appeal and thereby dismissing the suit for

partition.

AS TO SUBSTANTIAL QUESTION OF LAW NO.1.

“Whether a suit between the parties

would be barred by the provisions of res

judicata, in view of an arbitration award

passed in proceedings between the parties

under the Arbitration Act ? ”

SA 4.2007. judg.odt

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13) Although the substantial question of law pertains to

res judicata, the learned advocates did not seriously dispute

that, since earlier suit filed for making the award, rule of the

Court was not decided on merits, a fresh suit will not be

barred by res judicata. Both sides made submissions with

respect to maintainability of the suit in view of dismissal of

earlier suit filed for making the award rule of the Court. The

contentions revolved around maintainability of the suit with

respect to a right, which was also subject matter of the earlier

suit, which was dismissed on account of failure on the part of

plaintiff to pay appropriate stamp duty on the award in

compliance of order passed by the Court.

14) The learned advocate for the appellant contended

that provisions of Order II Rule 2, Order IX Rule 7 and Order

XXIII Rule 1 of the Code of Civil Procedure,1908 are not

applicable to a suit for partition and separate possession. The

learned advocate contends that right to seek partition and

separate possession of a joint property is a recurring right and

therefore even if earlier suit is dismissed in default or is

withdrawn without liberty to institute a fresh suit, a

SA 4.2007. judg.odt

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subsequent suit for partition and separate possession is not

barred since it arises out of a subsequent cause of action. He

submits that the arbitral award under the erstwhile

Arbitration Act did not become enforceable unless it was

made rule of the Court and therefore merely because an

arbitration award for partition was passed, the same will not

bar a subsequent suit for partition and separate possession.

The learned advocate for the appellant contends that the

learned First Appellate Court has erred in not taking into

consideration this vital aspect of the matter.

15) Per contra, the learned advocate for the

respondents/defendants argues that even when an arbitration

award is not made rule of the Court, it cannot be discarded

completely. He contends that since in earlier round of

litigation an arbitration award for partition was passed, it

was necessary for the plaintiff to pursue the said proceeding

and to get the same adjudicated in accordance with law. The

learned advocate contends that having failed to pursue the

proceeding after the stage of passing of arbitration award, the

plaintiff cannot institute a separate suit for the same purpose,

SA 4.2007. judg.odt

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i.e., partition and separate possession.

16) He has placed reliance on the following decisions in

support of his contention:-

i. M/s. Prataprai Manmohandas Vs. Ms.

Shivnarayan Balal and Co. reported in AIR 1956

Bombay.

ii. Firm Gulzarimal Gheesalal Vs. Firm

Rameshchandra Radhyeshya, reported in AIR

1959 Rajashthan 162.

iii.Satishkumar and ors. Vs. Surinderkumar

and ors., reported in AIR 1970 SC 833.

iv. M/s. Deluxe Silk Traders Vs. M/s.

Satyanarayan Mahendrakumar and ors., reported

in AIR 1979 Bombay 149.

v. Kehar Das Vs. Tarak Singh and anr,

reported in AIR 1977 Punjab and Haryana 306.

vi. Union of India and ors. Vs. Manager, M/

s. Jain and Associates, reported in AIR 2001 SC

809 equivalent citation 2001 (3) SCC 277.

SA 4.2007. judg.odt

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17) The ratio of the above judgments is that once an

award is passed in an arbitration proceeding, the said award

is binding between the parties and the same cannot be

discarded merely because it is not made rule of the Court. It

is held that once an award is passed, the parties cannot

initiate a fresh lis on the same cause of action which was

subject matter of the award and that the award will have to

be enforced or challenged in accordance with the procedure

prescribed under the Arbitration Act,1940.

18) It needs to be examined as to whether ratio of the

aforesaid judgments can be applied to a suit for partition.

19) The legal position that a suit for partition gives rise

to a recurring cause of action till the property is actually

partitioned is no longer res integra. The said legal position is

settled by a catena of decisions of various High Courts,

including this Court as also the Hon’ble Supreme Court of

India. Reference in this regard, can be made to judgment of

this Court in the case of Laxmanrao Mahadeo Nikose Vs.

Narayan Mahadeo Nikose, reported in 2014 (5) MhLJ 772.

The contention of the learned advocate for the appellant

SA 4.2007. judg.odt

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needs to be accepted that cause of action with respect to

partition and separate possession is recurring in nature.

20) The issue to be considered is as to what is the effect

of dismissal of the earlier suit filed by the arbitrator for

making the award relating to partition of suit property rule of

the Court. Under the Arbitration Act,1940, an award passed

by an arbitrator is not enforceable/executable unless it was

made rule of the Court. The award for partition between the

parties, therefore, cannot be termed to be a decree for

partition.

21) At the same time, it must be borne in mind that an

arbitral award under the old Act, although not made rule of

the Court, cannot be ignored in its entirety.

22) The judgments relied upon by the learned advocate

for the respondents/defendants will show that the Courts

have consistently held that once the parties had invoked

arbitration with relation to a particular cause of action, it is

not open to agitate the said issue again on the ground that

the award passed was not made rule of the Court. Although

the said legal principle is well entrenched, as is apparent

SA 4.2007. judg.odt

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from the aforesaid judgments, on which reliance is placed by

the respondents/defendants, it must also be stated that the

principle applies only when fresh arbitration is initiated or

suit is filed is on the same cause of action, after an award is

passed on the very cause of action. The principle in the said

decisions will not apply to a case of partition and separate

possession which, as stated above, gives rise to a cause of

action of recurring nature. It will be profitable to refer to Full

Bench decision of the Allahabad High Court in the case of

Bisheshar Das and Anr. Vs. Ram Prasad and Anr, reported in

(1891) ILR 13 Allahabad 309, wherein it is held that where a

decree declaring a right to partition which is not given effect

to, or if execution of the decree is barred by lapse of time, or

the decree becomes enforceable otherwise, it is open for the

parties to bring a fresh suit for partition. Relevant

observations of the Full Bench decision are extracted herein-

below:-

“The principle laid down in the case of Nasratullah

v. Mujibullah and others appears to us to govern

this case. In that case it was held that where a

decree declaring a right to partition has not been

given effect to by the parties and the decree has

SA 4.2007. judg.odt

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become by lapse of time or otherwise unenforceable,

it is competent to the parties, or any of them, if they

continue still to be interested in the joint property,

to bring a fresh suit for a declaration of their right

to partition. In the course of their judgment the

learned Chief Justice, Sir John Edge, and one of us

stated as follows :- “It has not been given effect to by

the parties proceeding to partition in accordance

with it, it is competent to the parties or any of them,

if they still continue to be interested in the joint

property, to bring another suit for a declaration of a

right to a partition in case their right to partition is

called in question at a time when by reason of

limitation or otherwise they cannot put into effect

the decree first obtained. In this respect suits for

declaration of right to partition differ from most

other suit. So long as the property is jointly held so

long does a right to partition continue. When a person

having a right to partition and desiring to

partition, has his right challenged, it appears to us

he can maintain a suit for a declaration, provided

his prior decree is not still enforceable.” As it

appears to us, the right to enforce partition is a

legal incident of a joint tenancy, and so long as such

tenancy subsists so long may any of the joint

tenants apply to the Court for partition of the joint

property. For these reasons the Courts below have

erred in dismissing the suit...”

In Madan Mohan Mondul and ors...vs..Baikanta

Nath Mondul and anr.; Vol. X The Calcutta Weekly Notes

839, the Calcutta High Court held thus:

“Moreover, as pointed out in the case of Nasrat

ullah v. Mujibullah (1) “When a decree declaring a

right to partition has not been given effect to by the

parties proceeding to partition in accordance with

it, it is competent for the parties or any of them, if

they still continue to be interested in the joint

SA 4.2007. judg.odt

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property, to bring another suit for a declaration of a

right to partition in case their right to partition is

called in question at a time when by reason of

limitation or otherwise, they cannot put into effect

the decree first obtained. In this respect, suits for

declaration of right to partition differ from most

other suits. So long as the property is jointly held,

so long does a right to partition continue”

23) In the present case, the arbitration proceeding was

dismissed on account of failure on the part of the plaintiff to

pay appropriate stamp duty on the award. The application

under Section 20 for making the award rule of the Court was

not decided on merits. Since the right to seek partition is a

recurring right, in the considered opinion of this Court, fresh

suit for partition and separate possession will be

maintainable.

24) In this regard, it will also be appropriate to refer to

certain developments that had taken place after dismissal of

Civil Suit No.8 of 1964.

25) One M/s. Ram Bahadur Thakur had instituted a suit

for recovery of money against the defendant (Mohanlal),

being Special Civil Suit No.54 of 1963. Decree for recovery of

money was passed against defendant (Mohanlal). An

SA 4.2007. judg.odt

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execution proceeding being Special Darkhast No.69 of 1966

was filed for execution of the decree. The plaintiff raised an

objection in the said execution proceeding claiming half share

in the suit property when the suit property was sought to be

attached. The defendant had also raised an objection in the

said proceeding vide exhibit 116 stating that the plaintiff had

half share in the suit property. The objections were decided

by the learned executing Court vide order dated 18.11.1968.

Likewise, in Revenue Case No.864/A-59(13)/64-65, decided

by the Tahsildar on 18.12.1968, the defendant admitted the

partition recorded in the document dated 02.10.1961,

thereby acknowledging share of plaintiff in the suit property.

Thus, the right of plaintiff is specifically admitted by

defendant even after dismissal of Civil Suit No.8 of 1964, and

as such there is a subsequent cause of action for filing the suit

for partition as a consequence of which even on facts

dismissal of earlier suit filed to make the arbitral award rule

of the Court will not bar subsequent suit for partition.

26) The first substantial question of law is accordingly

answered in favour of appellants and against

SA 4.2007. judg.odt

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respondents/defendants.

AS TO SUBSTANTIAL QUESTION OF LAW NO. 2

27) The learned advocate for the respondents/

defendants contends that since the plaintiff was ousted from

the suit property in the year 1960 itself, suit filed in the year

1973 was barred by limitation. The learned Trial Court has

rejected the contention that suit was barred by limitation in

view of admission of title of plaintiff by the defendant in

execution proceedings filed by M/s. Ramprasad Thakur as

also in the proceeding before the Tahsildar for mutation of

agricultural lands.

28) The learned First Appellate Court has, however,

recorded that possession of the defendant had become

adverse in the year 1960 itself when he had claimed exclusive

title over the suit property to the exclusion of the plaintiff

and thereby asserting possession adverse and hostile to the

interest of plaintiff. It is held that the suit is filed in the year

1973 after a period of 12 years and is accordingly barred by

limitation.

SA 4.2007. judg.odt

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29) In the considered opinion of this Court, the learned

Trial Court has rightly decided the issue of limitation.

Assuming that the defendant ousted the plaintiff in the year

1960 and claimed exclusive ownership, the record clearly

indicates admission of right of plaintiff in the suit property by

the defendant till the year 1968. The suit filed in the year

1973 or even 1976 after return of plaint is therefore filed

within a period of 12 years from the date of admission of

right of plaintiff in the suit property by the defendant. The

suit is therefore filed within limitation. The findings by the

learned First Appellate Court will on the aspect of limitation

are clearly unsustainable and are arrived at without taking

into consideration material facts relating to admission of title

of plaintiff by the defendant on record. The second

substantial question of law is therefore required to be

answered in favour of the appellants and against

respondents/defendants.

30) In the result, the Second Appeal deserves to be

allowed by confirming the judgment and decree passed by

the learned Trial Court and setting aside the judgment and

SA 4.2007. judg.odt

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decree passed by the learned First Appellate Court.

31) It will, however, be pertinent to state that while the

suit was pending, the original plaintiff had expired. The

plaintiff is survived by nine legal representatives, who were

brought on record. Legal representatives of plaintiff No.1(C)

have filed the present Second Appeal. The other eight legal

representatives have not challenged the decree passed by the

learned First Appellate Court.

32) It is the case of respondents/defendants that all the

other legal representatives have already sold their respective

shares in the suit property to the respondents/defendants. It

is further contended that appellant No.4 (Nilesh) and

respondent No.15 (Nivedita) have already sold their share in

the suit property to the defendants. The learned executing

Court shall take into consideration the transfers effected by

legal representatives of plaintiffs in favour of defendant or

legal representatives of defendants while working out the

shares.

33) Second Appeal is, therefore, partly allowed in the

following terms:-

SA 4.2007. judg.odt

23

I.Judgment and decree dated 25.04.2006,

passed by the learned 7

th

Ad-hoc Additional District

Judge, Nagpur in Regular Civil Appeal No.344 of

1998 is quashed and set aside.

II.Judgment and decree dated 12.02.1998,

passed by the learned 4

th

Joint Civil Judge, Senior

Division, Nagpur in Special Civil Suit No.204 of

1976 is confirmed.

(ROHIT W. JOSHI, J.)

Tanmay...