Second Appeal No. 450 of 1993. Case: Eknath Daval Thete Vs Ganpat Dagdu Thete and Ors.. High Court of Bombay (India)
| Case Number | Second Appeal No. 450 of 1993 |
| Counsel | For Appellant: Girish Agarwal, Adv. and For Respondents: P.N. Joshi, N.M. Pujari and P.B. Rahade, Advs. |
| Judges | R. D. Dhanuka, J. |
| Issue | Bombay Prevention of Fragmentation and Consilidation of Holdings Act, 1947 - Sections 2(10), 2(4), 36A, 36B, 5, 7, 8, 9; Bombay Prevention of Fragmentation and Consolidation Of Holdings Act, 1947 - Sections 10, 12, 2(10), 2(4), 29, 36A, 36B, 5, 7, 8, 9; Code of Civil Procedure, 1908 (CPC) - Order XLI Rule 33; Sections 100, 54; Hindu Succession ... |
| Judgement Date | January 06, 2016 |
| Court | High Court of Bombay (India) |
Judgment:
R. D. Dhanuka, J.
-
By this Second Appeal filed under Section 100 of the Code of Civil Procedure 1908, the appellant herein (original defendant No. 2) has impugned the judgment dated 26th August 1993 passed by the IV Additional District Judge, Nashik dismissing the appeal filed by the appellant against the judgment and decree dated 2nd January 1987 passed by the learned Civil Judge, Junior Division, Pimpalgaon-Baswant, District-Nashik allowing the suit filed by the respondent No. 1 herein (original plaintiff). For the sake of convenience, the parties to these proceedings are described in the later part of the judgment as they were described before the trial Court. Some of the relevant facts for the purpose of deciding this second appeal are as under:--
-
Gat No. 876 admeasuring 23 Ares assessed to Rs. 0.97 ps., Gat No. 885 admeasuring 1-59 hectares assessed to Rs. 8.19 ps. and Gat No. 873 measuring 55 Ares assessed to Rs. 0.69 ps. of Palkhed in Niphad taluka are the suit lands. The suit lands were ancestral and joint family property of the plaintiff, defendant No. 1 and their brother deceased Kashinath. The brother Kashinath died in the year 1975 leaving no heirs. The plaintiff and the defendant No. 1 each accordingly acquired one half share in the suit land. There was no partition amongst the plaintiff and the defendant No. 1 in respect of the suit lands.
-
It was the case of the plaintiff that the defendant No. 1 without informing the plaintiff sold his one half share to the defendant No. 2. It was the case of the plaintiff that the defendant No. 1 was conducting a hotel in the beginning and the plaintiff was cultivating the suit lands and paying share in the income to the defendant No. 1. It was the case of the plaintiff that the defendant No. 2 had obtained forcible possession of the suit lands and the entire Gat No. 876, western one half portion of Gat No. 885 and the entire Gat No. 873 were in illegal possession of the defendant No. 2.
-
In or about 1980, the plaintiff issued a notice under Section 22 of the Hindu Succession Act, 1956 to the defendant No. 1 thereby exercising the preferential right under the said provision in respect of the suit property. On 3rd July 1980, the plaintiff filed a suit in the Court of Civil Judge, Junior Division, Nashik (Regular Civil Suit No. 450 of 1980) inter alia praying for a declaration and possession of the suit property and in the alternative, for partition and possession of the suit property against the defendant No. 2. The defendant No. 1 protested the said suit by filing a written statement. In the said written statement, he admitted that the plaintiff and he each had one half share in the suit lands and contended that both were cultivating their respective lands separately since 12 years. He denied that the suit lands were never partitioned. He also denied that he had sold his share to the defendant No. 2 without knowledge of the plaintiff. He contended that he had sold his one half share in the suit lands to the defendant No. 2 by Sale Deed dated 7th June 1979 and since then, the defendant No. 2 was in possession of the suit lands. He denied that the plaintiff had any preferential right to purchase the suit lands of his share. The defendant No. 1 also raised an issue of jurisdiction in the said written statement. The defendant No. 2 also filed a separate written statement and raised identical issues which were raised by the defendant No. 1.
-
Learned trial Judge framed 7 issues and rendered findings thereon. The plaintiff adduced his evidence and deposed that the suit lands were ancestral property and that the plaintiff and the defendant No. 1 each had equal share in the suit lands.
-
By a judgment and decree dated 2nd January 1987, the learned trial Judge ordered that the plaintiff had preferential right to purchase the interest and share of the defendant No. 1 in the suit lands under Section 22 of the Hindu Succession Act, 1956. It was held that the suit lands were partitioned and separate possession of each one half share was given to the plaintiff and the defendant No. 1. It was ordered that the partition of the suit lands was made by the Collector or any gazetted sub-ordinate to him under Section 54 of the Code of Civil Procedure, 1908. Learned trial Judge held that the plaintiff, however, was not entitled to mesne profits since he had not proved that the land of his share was in defendant's possession at any time.
-
Being aggrieved by the said judgment and decree dated 2nd January 1987, both the defendants filed an appeal (Civil Appeal No. 103 of 1987) against the original plaintiff in the Court of District Judge, Nashik.
-
By an order and judgment dated 26th August 1993, the learned IV Additional District Judge, Nashik dismissed the said Civil Appeal No. 103 of 1987 and declared that the plaintiff had preferential right to purchase from the defendant No. 1 the share of the defendant No. 1 in the disputed lands transferred under Sale Deed dated 7th June 1979 in favour of the defendant No. 2 on payment of consideration stated in the said sale deed. It was further declared that the Sale Deed dated 7th June 1979 was not binding upon the plaintiff. By the said order, the Lower Appellate Court directed the defendant No. 2 to hand over possession in favour of the plaintiff on receiving all such payment from the plaintiff. The Lower Appellate Court directed that the plaintiff shall execute the decree after four months from the date of the said order i.e. from 26th August 1993.
-
Being aggrieved by the said order and judgment dated 26th August 1993, the defendant No. 2 only filed this second appeal under Section 100 of the Code of Civil Procedure, 1908 in this Court. The original defendant No. 1 did not file any appeal.
-
This Court admitted this second appeal on 1st December 1993 on the following substantial questions of law:--
(c) That the Learned Appellate Judge committed a grace and error in passing the decree of the kind which is for declaration of the kind and the sale deed being null and void and directing delivery of possession of the half share of the present appellant purchased from the defendant No. 1 in the absence of any suit there being such less any counter claim and/or any cross-objection.
(d) That the substantial question of law would be whether the Appellate Court was right in holding that the Civil Court has observed in para 14 of his judgment when Section 36A of the Bombay Prevention of Fragmentation (Consolidation and Holding) Act, 1947 excepts jurisdiction of the court in that behalf.
(e) That the substantial question of law would be whether the Appellate Court was in fixing the price and direction that on repayment of the consideration shown in the Sale Deed of 1979 the object was to become owner when the proceedings in question has been under Section 22 of the Hindu Succession Act nor the question of bonafides improvement etc. was gone into and that no claim in that behalf has been decreed.
(f) That the substantial question of law would be whether the Appellate Court was right in passing a decree in the absence of there being any suit and when no relied of the kind was asked for and when such a relief could not have been granted in the present suit, especially and particularly when even against the decree of the trial court no cross-objection and/or cross appeal was filed.
(g) That the court below committed an error in holding that the provision of Section 22 in the instant case will apply when the defendant No. 1 was having a half share which came to be sold to defendant No. 2 i.e. the appellant.
-
Mr. Agarwal, learned counsel appearing for the appellant herein (defendant No. 2) invited my attention to the order passed by the two Courts below, correspondence exchanged between the parties which were forming part of the record and some part of the pleadings. It is submitted by the learned counsel that the learned trial Judge had allowed the time barred claim made by the plaintiff. In support of this submission, he invited my attention to the notice dated 23rd June 1980 issued by the plaintiff thereby claiming a preferential right in the suit property and the Sale Deed dated 7th June 1979 executed between the defendant No. 1 and the defendant No. 2 which was duly registered. Learned counsel placed reliance on Article 97 of the Schedule to the Limitation Act, 1963. It is submitted that since the defendant No. 2 was handed over possession of the suit lands by the defendant No. 1 on the date of execution of Sale Deed dated 7th June 1979 when the said property was sold to the defendant No. 2, the cause of action arose for filing a suit for enforcement of a right of pre-emption on the date of handing over such possession to the defendant No. 2 by the defendant No. 1 and the suit ought to have been filed within one year from the date of handing over possession of the suit property to the defendant No. 2.
-
It is submitted that in the alternative, even if the physical possession of the suit property was not handed over to the defendant No. 2 by the defendant No. 1, the suit was required to be filed within one year from the date of registration of the sale deed. He submits that admittedly, the suit was filed on 24th July 1980 which was beyond the period of one year from the date of the defendant No. 1 handing over the possession of the suit property to the defendant No. 2 or in any event within one year from the date of registration of the said sale deed.
-
It is submitted by the learned counsel for the defendant No. 2 that even in the notice issued by the plaintiff and also in the plaint, the plaintiff had averred that the defendant No. 2 had already taken possession of the suit property in the month of June or July 1979. He submits that though the defendant No. 2 had not raised a plea of limitation in the written statement filed before the learned trial Judge, in view of Section 3 of the Limitation Act, 1963...
To continue reading
Request your trial