Sandeep K. Shinde, J
1. Appellant/defendant No.5, in the Regular Civil Suit No.81 of 2000, instituted by respondent nos.1 and 2 herein, has preferred this appeal against the
decree dated 14th July, 2015, in Regular Civil Appeal No.68 of 2008 passed by the District Judge-2, Nifad, Nashik.
2. Facts of the case are as follows:
Ratnabai and Satyabhamabai, respondent nos.1 and 2 (Plaintifss instituted the suit against their brothers Rangnath (Defendant No.1s, Raghunath
Damu Sanap (Defendant No.2s, Sister, Kamlabai (Defendant No.3s for partition of the suit agricultural land admeasuring 53R. The suit was instituted
in December, 1998 for two fold reliefs; one, for partition and another to set aside the sale deed executed by Rangnath (Defendant No.1s in favour of
Raghunath Damu Sanap (Defendant No.2s. It is plaintifss case that, brother, Rangnath, in collusion with Revenue Ofcer, recorded his name in
Revenue records, projecting suit property had fallen to his share. Resultantly, Mutation Entry 428 was certifed. Whereafter Rangnath sold the suit
property to brother Raghunath, and as such another Mutation Entry 291, was certifed. Whereafter plaintifs demanded their share, but since refused,
sisters instituted the suit. In appeals, after perusing Written Statement of brothers, Rangnath and Raghunath, plaintifs discovered that Rangnath had
sold the suit property to Bhausaheb, son of Raghunath. Also, learned about, the partition deed dated 8th February, 1994, purportedly, made by
Pandharinath (Father of Plaintifs and Defendant Nos.1,2 and 4s and will dated 11th February, 1994 whereby Pandharinath bequeathed suit property to
the Rangnath. Following that, by amending plaint, Bhausaheb (Son of Raghunaths was impleaded as defendant no.5 and declaration was sought, to the
efect that sale deed dated 17th December, 1997 executed by Rangnath (Defendant No.1s in favour of Bhausaheb (Defendants was illegal. Also,
sought a declaration that partition deed dated 8th February, 1994 and will of Pandharinath dated 11th February, 1994, were illegal and not binding on
them.
Amendment was granted in August, 2005.
3. This appeal is preferred by Bhausaheb (Defendant No.5)
4. Before the Trial Court, Bhausaheb (Defendant No.5s had raised, the issue of limitation by taking recourse to the provisions of Section 21 of the
Limitation Act read with Article 57. He contended, that, in terms of Section 21, the suit instituted against him is deemed to have been instituted in the
year August, 2005 (when impleaded as defendant no.5s but at the material time, it was barred by limitation in terms of Article 57 of the Limitation
Act. Thus, Bhausaheb, contended prayer, seeking, to set aside the sale deed dated 17th December, 1997, executed in his favour by Rangnath
(Defendant No.1s, was barred by limitation.
5. Be that as it may, the learned Trial Court upon appreciating the evidence although held, that plaintifs have proved their 1/5th share each in the suit
property, the relief, seeking declaration to set aside the sale deed executed by Rangnath (Defendant No.1s in favour of appellant-Bhausaheb was
declined being barred by limitation and on this count, the suit was dismissed.
6. It may be stated, the finding of the Trial Court, acknowledging, plaintifss 1/5th share each, has not been assailed either by Ranganath nor by
Raghunath nor by Bhausaheb (Appellant hereins nor fled cross-objections in Regular Civil Appeal preferred by the plaintifs.
7. Appellate Court, allowed the appeal and set aside the decree of the Trial Court. Operative order reads as follows:
ORDER
“(i) The appeal is partly allowed,
(ii) The judgment and decree passed by the learned trial Court in RCS NO.81/2000 dated 21-02-2006 is quashed and set aside,
(iii) Suit bearing RCS No.81/2000 is partly decreed with costs,
(iv) Plaintif Nos.1 and 2 and defendant Nos.1,3 and 4 are entitled for 1/5th share each in the suit property. Property be partitioned accordingly and
possession of respective shares of plaintifs and defendant nos.3 and 4 be given to them after the suit property is partitioned by metes and bounds, (vs
Out of the share of defendant No.1, it is already sold by him to defendant no.5 by sale deed dated 08-12-1997 and said sale deed dated 08-12-1997
executed by defendant no.1 in favour of defendant no.5 is valid and legal to the extent of 1/5th share of defendant no.1,
(vi) As regards remaining part of sale-deed in respect of other excess land other than 1/5th share of plaintifs, it is null and void and possession of 1/5th
share sold to defendant no.5 be given to him, (viis Issue perpetual injunction against defendant no.5 thereby restraining him from alienating the share of
plaintifs and defendant nos.3 and 4 in the suit property,
(viii) Preliminary decree be drawn up accordingly.â€
8. Aggrieved by the decree passed in the Regular Civil Appeal No.68 of 2008, Bhausaheb (Defendant No.5s has preferred this appeal.
9. Heard learned counsel for the parties.
Perused the impugned decree.
10. Mr. Joshi, learned counsel for the appellants, has strenuously argued that appellant is bonafide  purchaser for value and, therefore, rights
acquired by him in the suit property cannot be defeated. He submitted admittedly, relief to set aside, sale deed, was sought beyond the period of
limitation. Submission is, although the plaintifs had knowledge of alienation of suit property at the time of instituting the suit, but since appellant had
been impleaded in year 2005, the relief seeking cancellation of the sale-deed dated 17th December, 1997, was clearly barred by limitation. Mr. Joshi,
learned counsel further submitted that the suit property admeasures, hardly 53R and cannot be partitioned in view of the provisions of the Maharashtra
Prevention of Fragmentation and Consolidation of Holdings Act, 1947.
11. Admittedly, finding, of fact in respect of undivided share of the plaintiffs in the suit property, rendered by the Trial Court was not challenged either
by the appellant or by Rangnath (Defendant No.1s, through whom appellant, is claiming right and interest in the suit property. Admittedly, partition
deed dated 9th February, 1994 and will deed dated 11th February, 1994 being not proved, right of defendant no.1, to alienate the suit property has been
negated and invalidated by both the Courts below. Herein, the suit was for partition and relief, to set aside the sale deed, was consequential relief.
Indisputably, the suit property was joint family property, in the hands of Pandharinath. Therefore, he had no right to bequeath the suit property to
Rangnath nor had a right to execute the partition deed, by excluding the other members of family. As a result, defendant no.1 had no right to alienate
the suit property to appellant. Even otherwise, alienation was not for legal necessity. A fact cannot be overlooked that the appellant, is a member of
family and, therefore, it is to be presumed, he had knowledge about the character of the property. In these circumstances, alienation of the suit
property was an attempt to frustrate and defeat the plaintifss right.
12 Having heard learned counsel for the parties, in my view, in consideration of the facts of the case and the evidence on record, in my view,
Appellate Court has correctly decreed the suit. As such, no interference is called for. Appeal does not give rise to substantial questions of law. Appeal
is, therefore, dismissed. Civil Application is disposed of.
