This appeal challenges the judgment and decree from Regular Civil Appeal No. 201 of 2015, dated 28.02.2022, by Ad-hoc District Judge-2, Wardha. The appeal was filed by a third party, the appellant, who claims ownership of Survey No. 365, village mouza Waigaon (Nipani), District Wardha, which is the subject matter of the suit. The initial suit was for partition, and the appellant contends his valuable rights are affected. Both lower courts' judgments were set aside due to the appellant not being made a party to the original suit, constituting a patent illegality. The case is remanded for a fresh hearing on merit with the appellant and all relevant parties included.

Introduction

1. Nature of the Appeal
   • The appeal is against the judgment and decree passed in Regular Civil Appeal No. 201 of 2015 dated 28.02.2022 by Ad-hoc District Judge-2, Wardha.
   • The original appeal was filed against the judgment and decree in Regular Civil Suit No. 70 of 2009.

Case Background

2. Brief Facts
   • Respondent No. 1 filed a suit for partition against other respondents except respondent No. 10.
   • The suit was decreed, and the appellant, a third party, claimed ownership of Survey No. 365.
   • The appellant's appeal was dismissed as he failed to prove his right in the suit property.

Arguments

3. Appellant’s Submissions

   • The appellant's name appears in the revenue record (7/12 extract) of Survey No. 365 due to mutation entry No. 1480 in 2011.
   • The mutation entry is unchallenged by respondents.
   • All relevant documents were filed as directed by the Court on 15th March, 2024.
   • The appellant claims his valuable rights are affected and requests to set aside the judgments and remand the suit for a fresh hearing.

4. Respondents’ Submissions

   • Earlier partition took place between the forefathers of the appellant and respondent No. 1.
   • The Tahsildar Wardha's final order for partition under Section 85 of the Maharashtra Land Revenue Code, 1966, is highlighted.
   • Revenue records and details of earlier partition support their claim.
   • Respondents argue for the dismissal of the appeal.

Court’s Observations

5. Analysis of Records

   • The appellant’s name is recorded in the revenue records of Survey No. 365.
   • The appellant was not a party to the suit; thus, the property could not be partitioned without his inclusion.
   • The judgments of both lower courts contain patent illegality.

6. Matter of Evidence

   • The defense regarding earlier partition requires evidence.
   • Parties are at liberty to provide evidence on the existence or non-existence of the earlier partition.

Court’s Directions

7. Setting Aside Judgments

   • The impugned judgments and decrees are set aside.
   • The appeal is allowed, and the suit is to be heard afresh on merit.

8. Trial Court Directions

   • The trial court is directed to decide the suit on merit with full opportunities for all parties to amend pleadings.

9. Plaintiff Directions

   • Plaintiff to amend the suit to add the appellant as a defendant within a month; otherwise, the suit will be dismissed.

10. Common Hotpotch Inclusion

    • All properties of late Nama, common ancestor, to be included in the suit.
    • All descendants with rights to be added as parties.

11. Exclusion of Respondent No. 10

    • Respondent No. 10, having acquired parts of the suit properties, is to be deleted from the suit.

12. Court Appearance

    • All parties to appear before the trial court on 19.7.2024 without fresh summons.

13. Expedited Trial

    • Trial to be concluded within a year by holding sessions twice a week.

14. Fresh Issues

    • Trial court to cast issues afresh and allow evidence on merit.
    • Public documents can be taken on record under Section 30(b) of the Code of Civil Procedure, 1908.

15. Record and Proceedings

    • Records to be sent back to the trial court immediately.

16. Costs

    • No costs awarded.

17. Disposal of Appeal

    • The appeal is disposed of.

18. Registry Instructions

    • Registry to inform the trial court accordingly.