Second Appeal No. 85 of 2007. Case: Venkatesh M. Karekar and Ors. Vs Rosemary Fernandes and Ors.. High Court of Bombay (India)
| Case Number | Second Appeal No. 85 of 2007 |
| Counsel | For Appellant: S.D. Lotlikar, Senior Advocate and G. Xettigar, Advocate and For Respondents: J.E. Coelho Pereira, Senior Advocate, V. Korgaonkar and Daksha Lotlikar, Advocate |
| Judges | F. M. Reis, J. |
| Issue | Limitation Law |
| Judgement Date | October 15, 2015 |
| Court | High Court of Bombay (India) |
Judgment:
F. M. Reis, J.
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Heard Mr. S.D. Lotlikar, learned Senior Counsel appearing for the appellants and Mr. J.E. Coelho Pereira, learned Senior Counsel appearing for the respondents.
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The above appeal came to be admitted by an order dated 16th January, 2009, on the following substantial questions of law:
(i) Whether the suit could be said to be falling one under Article 59 or Article 60 of the Limitation Act, 1963?
(ii) Whether the First Appellate Court fell in error in holding that the limitation should be reckoned from the date of knowledge or the limitation has to be reckoned from the date of attaining majority by the plaintiffs?
(iii) Whether it was necessary for the plaintiffs to have claimed possession also as a relief along with declaration and injunction?
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Mr. S.D. Lotlikar, learned Senior Counsel appearing for the appellants, in support of the first and second substantial questions of law, has pointed out that the suit filed by the appellants has to be considered in terms of Article 60 of the Limitation Act, 1963 as, according to him, it is the contention of the respondents that the disputed sale deed executed in the year 1977 was defeating the rights of the minors and, as such, the suit had to be filed within three years from the date of attaining majority. The learned Senior Counsel has further pointed out that one of the respondents was a minor when the disputed sale deed was executed and the other respondents immediately after the sale deed was executed and, consequently, the suit filed by the respondents was hopelessly barred by limitation. The learned Senior Counsel further points out that the learned Lower Appellate Court has examined the matter in terms of Article 59 of the Limitation Act. The learned Senior Counsel further points out that even in terms of Article 59 of the Limitation Act, there is no material on record to establish the alleged claim of the respondents that they learnt of the disputed sale deed in the year 1990 which forced them to file the suit in the year 1992. The learned Senior Counsel has taken me through the Judgment of the learned Lower Appellate Court to point out that there is no positive findings with that regard, arrived at by the learned Lower Appellate Court whilst coming to the conclusion that the suit was not barred by limitation in terms of Article 59 of the Limitation Act. The learned Senior Counsel has further pointed out that even in the plaint, there is no averment as to when the respondents learnt about the disputed sale deed. The learned Senior Counsel further points out that as the sale deed itself was a registered document, the knowledge of sale deed is attributed from the date of its registration with the concerned Authority.
With regard to the third substantial question of law, it is pointed out by Mr. Lotlikar, learned Senior Counsel appearing for the appellants that it is the case of the appellants that pursuant to the disputed sale deed in the year 1977, the appellants entered into the possession of the disputed property. The learned Senior Counsel further submits that as the appellants were in possession of the disputed property, the Lower Appellate Court was not justified to grant a permanent injunction against the appellants not to interfere, in any manner in the disputed property. The learned Senior Counsel further submits that as there is no prayer for restoration of possession, it is well settled that the plaintiffs cannot get a...
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