R.G. Ketkar, J.@mdashHeard Mr. N.K. Kakade, learned counsel for appellants and Mr. N. v. Gavare, learned counsel for Respondents No. 2 to 4 at length. By this appeal, under Section 100 of the Code of Civil Procedure, 1908 (for short, C.P.C.), the original plaintiffs and defendants No. 1 to 3 have challenged the Judgment and Decree dated 4th May, 2013 passed by the learned Principal District Judge, Ahmednagar in Regular Civil Appeal No. 231/2006. By that order, the learned District Judge allowed the appeal preferred by the defendants No. 4 to 7. The plaintiffs'' claim for partition, separate possession and declaration, that the sale deed dated 5th January, 1988 in respect of Gat No. 162 executed by defendant No. 1 in favour of defendant No. 4, was nominal, bogus, illegal and not binding on the plaintiffs'' share was dismissed. Consequently, the suit was also dismissed. The parties shall be referred as per their status before the Trial court.
2. The plaintiffs instituted the suit for partition and separate possession of their 1/5th share. The suit properties are agricultural lands and open space, the details of which are as under,-
3. The case of the Plaintiffs is that Bhaguji was the original ancestor. He died leaving behind widow Drupadabai, sons Haribhau, Natha, Dashrath (Defendant No. 1). The Plaintiffs are the legal heirs of Natha. They instituted the suit against Dashrath (Defendant No. 1), Tulsabai (Defendant No. 2, who is wife of Dashtrath) and Chandrakala (Defendant No. 3, daughter of Dashtrath) as also appellants - defendants No. 4 to 7. The case of the Plaintiffs is that upon death of Bhaguji, the suit properties devolved equally on the shares of his three sons Haribhau, Natha and Dashtrath, and also on his wife Drupadabai. As per the theory of notional partition each one got 1/5th share. The 1/5th share of Natha is inherited by the Plaintiffs. The Plaintiffs further contended that there was no partition by metes and bounds and the properties continued as joint family property.
4. Defendant No. 1 Dashrath was cultivating the agricultural lands for and on behalf of joint family. The Plaintiffs requested Defendant No. 1 to effect partition. Defendant No. 1 however avoided to effect partition. The Plaintiffs came to know that the Defendant No. 1 took undue advantage of the situation and entered his name in revenue record in respect of Gat No. 162 to the exclusion of the other legal heirs of deceased Bhaguji. On 5th January, 1988, Defendant No. 1 sold Gat No. 162 to Defendant No. 4. Defendants No. 5 to 7 are the sons of Defendant No. 4. It is the case of the Plaintiffs that, the sale deed executed by Defendant No. 1 in favour of Defendant No. 4 on 5th January, 1988, is null and void and not binding on the plaintiffs'' share. Defendant No. 1 was not having any right, title and interest to sell the suit property. The sale deed dated 5th January, 1988 is nominal.
5. Defendants No. 1 to 3 filed written statement at Exh. 19. They admitted the claim that the suit properties are ancestral. It was contended by them that Defendant No. 4 took undue advantage of the simplicity and illiteracy of Defendant No. 1 and got the sale deed executed in favour of Defendant No. 4 on 5th January, 1988. The entire sale deed is null and void. In the alternative, they contended that Defendant No. 1 is ready to return Rs. 8,000/- received from Defendant No. 4.
6. Defendant No. 7 resisted the suit by filing written statement at Exh. 17, inter alia contending that Gat No. 162 was sold by Defendant No. 1 by registered sale deed dated 5th January 1988 for Rs. 8,000/- as per the market value. In pursuance thereof, Defendants No. 4 to 7 are in possession of Gat No. 162 as owner thereof. The said sale deed is binding on the Plaintiffs and the Defendant Nos. 1 to 3. Defendants No. 4 to 6 adopted the written statement of Defendant No. 7 by filing a pursis at Exh. 18.
7. The parties led evidence. After considering the evidence on record, the learned Trial Judge decreed the suit and held that the Plaintiffs No. 1 to 3 have 1/5th share each and directed the Defendants No. 1 to 7 to handover the possession of the 1/5th share to the plaintiffs. Aggrieved by that order, Defendants No. 4 to 7 preferred an appeal. By the impugned order, the learned District Judge allowed the appeal as indicated here-in-above. It is against this decision, the original Plaintiffs and Defendants No. 1 to 3 have instituted this second Appeal.
8. In support of this Appeal, Mr. Kakade strenuously contended that, the learned District Judge committed serious errors in allowing the appeal. He submitted that, the suit properties are admittedly ancestral properties. Defendant No. 1 could not have sold entire Gat No. 162 to Defendant No. 4. In any case, Defendant No. 1 could have sold his share in Gat No. 162 and not the entire Gat No. 162. He further submitted that, the Defendant No. 1 sold Gat No. 162 without there being any legal necessity. He further submitted that, after the sale deed was executed is on 5th January, 1988, on the same day, Defendant No. 4 executed writing in favour of Defendant No. 1 inter alia setting out therein, as and when Defendant No. 1 repays the consideration amount of the sale deed, the sale deed in favour of Defendant No. 1 shall stand cancelled and he will execute the registered sale deed in favour of Defendant No. 1. In other words, he submitted that, transaction dated 5th January, 1988 entered into by and between Defendant Nos. 1 and 4 was mortgage by conditional sale.
9. Mr. Kakade submitted that the Plaintiffs have taken out Civil Application No. 10250/2014 seeking amendment of the plaint for incorporating this ground. He submitted that, even if the learned District Judge may be justified in dismissing the Plaintiffs claim for partition and separate possession and declaration in respect of sale deed dated 05th January, 1988 of Gat No. 162, none the lies, the learned District Judge was not justified in dismissing the suit in respect of the remaining properties.
10. On the other hand Mr. Gaware supported the impugned order. He submitted that, the Plaintiffs have not prayed for declaration that, the sale deed dated 5th January, 1988 is not binding to the extent of their share. He submitted that, the suit, challenging the sale dated 05th January, 1988, is hopelessly time-barred as the suit is admittedly instituted of 06th October, 2003.
11. He submitted that Plaintiff No. 1 - Pandurang is witness to the sale deed. Plaintiff No. 1 was major at the time of execution of sale deed. He submitted that, plaintiffs were having knowledge of execution of sale deed by Defendant No. 1 in favour of Defendant No. 4 right from 1988. In any case, in pursuance of the sale deed Defendants No. 4 to 7 were put in possession of Gat No. 162 and the entries were effected in the relevant revenue record. He submitted that, Civil Application No. 10250/2014 is wholly misconceived.
12. He further submitted that the Plaintiffs had earlier filed Civil Application No. 9710/2013 under Order 41 Rule 27 of C.P.C. for producing the alleged writing dated 05th January, 1988. By order dated 15th September, 2014, the application was dismissed. He submitted that, the Plaintiffs cannot be allowed to produce and rely upon the alleged writing dated 05th January, 1988. He further submitted that no case is made out for invocation of powers under Section 100 of C.P.C.
13. I have considered the rival submissions made by the learned counsel appearing for the parties. I have also perused the material on record. I do not consider it appropriate to consider the contention advanced by the parties in respect of C.A. No. 10250/2014 as I have dismissed the same by passing separate order.
14. As noted earlier, the plaintiffs have instituted the suit for partition and separate possession of their 1/5th share in the suit properties, more particularly described herein above. In paragraph No. 4, the plaintiffs alleged that they repeatedly called upon the defendant No. 1 to effect the partition. However, deft. No. 1 avoided to effect partition. The plaintiffs obtained necessary information and realized that deft. No. 1 had sold Gat No. 162. They perused the 7/12 extracts and realized that the Defendant took undue advantage of the fact that the said land was exclusively standing in his name. Defendant No. 1, sold Gat No. 162 to Defendant No. 4. In Paragraph 5 Plaintiff asserted that the market value of Gat No. 162 is more than Rs. 8,000/- for which it was sold. The sale deed is not binding on the shares of the Plaintiffs as Gat No. 162 is a joint family property. In Paragraph 6, the Plaintiffs asserted that the sale deed is null and void and nominal. Defendant No. 4 does not acquire any right under that sale deed. Though Plaintiffs asserted these facts in Paragraphs 4 to 6, perusal of the prayers shows that the Plaintiffs did not pray for declaration that the sale deed dated 05th January, 1988 is not binding on their shares. The suit was instituted only for partition and separate possession of their 1/5th share.
15. The learned Trial Judge decreed the suit. Perusal of the trial court''s Judgment shows that the learned Trial Judge held that Gat No. 162 is an ancestral property, and consequently Plaintiffs No. 1 to 3 have 1/5th share each. The learned Trial Judge relied upon the decision of the Karnataka High court in the case of
16. As against this, the learned District Judge observed that the sale deed was executed on 05th January, 1988 and the suit is instituted on 06th October, 2003, i.e. after more than 15 years. In Paragraph 22, the learned District Judge observed that Plaintiff No. 1 Pandurang is one of the attesting witnesses to the said sale deed. He had full knowledge about execution of the sale deed executed by his father in favour of Defendant No. 4 - Keru. Despite that, the suit is instituted after nearly 15 years. It was further observed that in the revenue record name of the Defendant No. 4 was shown continuously from the date of the sale deed and that Gat No. 162 was also shown to be in possession of Defendant No. 4. The learned District Judge also held that, Gat No. 162 was sold by Defendant No. 1 for meeting his household and agricultural expenses.
17. In my opinion, it cannot be said that the learned District Judge has committed any error in that regard. The sale deed was executed on 05th January, 1988 and the suit is instituted in the year 2003. As noted earlier, the Plaintiffs have not sought declaration that the said sale deed is not binding on their shares. That apart, even if the Plaintiffs were to seek declaration to that effect, the suit would have been clearly barred by limitation. Article 58 of the Limitation Act lays down that for obtaining any other declaration, period of limitation is of three years and the time from which period begins to run is when the right to sue first accrues. Plaintiff No. 1 is one of the attesting witnesses to the sale deed dated 05th January, 1988. Thus, right to sue first accrued in 1988. The Plaintiffs, however, instituted the suit in the year 2003, that too, without praying for declaration. I, therefore, find that the suit instituted by the Plaintiffs to that extent was clearly barred by limitation. The Plaintiffs cannot claim ignorance in as much as in the relevant revenue record, Gat No. 162 was entered in the name of Defendant No. 4 and he was also shown to be continuously in possession thereof from the date of the sale deed. The Plaintiffs, therefore, cannot claim declaration that the sale deed dated 05th January, 1988 executed in respect of Gat No. 162 is nominal, bogus, illegal and not binding on the Plaintiffs shares by filing suit in the year 2003. Mr. Kakade submitted that in any case, the learned District Judge committed an error in dismissing the suit in its entirety. The learned District Judge ought to have passed a decree for partition in respect of the suit properties, other than Gat No. 162.
Mr. Gavare was not in a position to support the judgment of the learned District Judge on this count. In view thereof, the appeal partly succeeds in the following terms,-
a) The plaintiffs'' claim for declaration that the sale deed dated 5th January, 1988 in respect of Gat No. 162, was nominal, bogus and illegal and not binding on the plaintiffs'' share, stands dismissed;
b) The suit instituted by the plaintiffs is partly decreed and there shall be decree for partition in respect of the suit properties excluding Gat No. 162;
c) It is held that the plaintiffs have 1/5th share each in the properties excluding Gat No. 162 and to that extent the trial court''s decree is restored;
d) By way of abundant caution, it is made clear that the plaintiffs suit in respect of Gat No. 162, stands dismissed.
e) The appeal is partly allowed accordingly with no order as to costs.
f) In view of the above, Civil Application No. 9709/2013 for injunction does not survive and the same is disposed of.
