High Court

Legal Reasoning

1 SA 320.23+CA.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO.320 OF 2023Bapusaheb Shankarrao Dharme And AnotherVERSUSNirmalabai Sunderlal Munot Died Through Lrs. MahendraSunderlal Munot And Others...Advocate for AppellantS : Mr. M.S. Kulkarni Advocate for Respondents 1-3 : Mr. A.P. Bhandari R/5, R/6/a To R/6/d Are Served through Paper Publication....WITHCIVIL APPLICATION NO. 3307 OF 2024 IN SA/320/2023WITHCIVIL APPLICATION NO. 7832 OF 2023 IN SA/320/2023 CORAM :S. G. CHAPALGAONKAR, J.Reserved on:January 31, 2025Pronounced on :April 15, 2025.FINAL ORDER :-1.The appellants/original plaintiffs impugnsjudgment and decree dated 21.4.2023 passed by the DistrictJudge, Aurangabad in Regular Civil Appeal No.200 of 2016thereby upholding the judgment and decree dated 18.04.2016passed by Civil Judge Senior Division, Aurangabad in SpecialCivil Suit No.308 of 2011.2.The appellants/original plaintiffs instituted suit fordeclaration of ownership and perpetual injunction in respect of 2 SA 320.23+CA.odtthe suit property which is part of Gat no.19, 20 and 21 inGhardon Shivar, Taluka and District Aurangabad. According toplaintiffs, one Mainabai Shankarrao Dharne i.e. their motherwas owner of the suit property. She died on 7.11.1988.Plaintiffs inherited suit properties from her. Eventuallymutation entry no.980 was passed in their name. According toplaintiffs, Thakubai, who was cousin sister of Mainabai hadentered her name for half portion of suit properties videmutation entry no.348. However, she was never in possessionof the suit properties. On the basis of aforesaid mutation entry,Thakubai transferred suit property in favour of Dr. SayyedMukhtar under sale-deed dated 5.3.1984. Sayed Mukhtar diedon 10.11.1988. The defendants, who are legal heirs of SayyedMukhtar obtained letter of administration from Civil Court andentered their name towards half portion of the suit propertiesbeing successors of Dr.Sayyed Mukhtar. Thereafter, theyexecuted registered sale-deed dated 19.4.2011 in favour ofdefendant nos.1 to 3.3.On 12.5.2011 when defendants entered into suitproperties and attempted to obstruct possession of plaintiffs,they got knowledge about aforesaid transaction and filed 3 SA 320.23+CA.odtpresent suit seeking declaration of ownership, perpetualinjunction and that sale-deed dated 19.4.2011 is not bindingupon them. Plaintiffs have also claimed for decree of perpetualinjunction against defendants from disturbing their possession.4.Defendant nos.1 to 3 filed written statementcontending that suit land was originally owned by Dashrathand Sakharam Thoraji. They had mortgaged properties toJayaji and Nana Dagdona for twenty years. After their demise,Mainabai i.e. mother of the plaintiff and Thakubai filedproceeding for redemption of mortgage. It was decreed on13.1.1977. Although, said order was assailed by heirs of Jayajiand Tana in appeal before Additional Commissioner, it wasdismissed on 16.9.1980. After decision of AdditionalCommissioner, Mainabai and Thakubai were put into thepossession. Initially, name of Mainabai was mutated in recordof rights. Later-on, on application of Thakubai, mutationrecord was corrected and name of Mainabai and Thakubai wasentered in record of rights as owner and possessor of the suitproperties. 4 SA 320.23+CA.odt5.Since Thakubai was owner of half portion, shetransferred her share to Dr. Sayed Mukhtar and in-turn, legalheirs of Dr. Sayed Mukhtar transferred properties in the nameof defendant nos.1 to 3 vide sale-deed dated 19.4.2011. Thedefendants also filed a counter-claim contending that whenthey had been to the suit field, they noted that the suitproperty is divided into parts and it is difficult for them tocontinue in possession of specific portion. As such, theyclaimed for relief of partition and separate possession.6.Trial Court framed the issues, recorded evidence ofparties and finally dismissed suit and decreed counter-claimfiled by defendant nos.1 to 3 and directed that defendant nos.1to 3/plaintiffs in counter-claim are entitled for partition andseparate possession to the extent of half share in the suitproperty. Aggrieved plaintiff filed Regular Civil Appeal No.200of 2016 before the District Judge at Aurangabad, whodismissed the appeal upholding judgment and decree as passedby the trial Court. Hence, this second appeal.7.Mr. Mukul Kulkarni, learned advocate appearingfor the appellants vehemently submits that Trial Court as wellas Appellate Court failed to frame issues emerging from 5 SA 320.23+CA.odtpleadings of the parties in the suit and counter claim.According to him, Dr. Sayed Mukhtar or his predecessor-in-titleThakubai was never in possession of any portion of the suitproperty. The second purchaser/defendant nos.1 to 3 cannotseek relief of partition of the property after 28 years when suchsuit ought to have been filed in terms of section 44 of Transferof Property Act within a period of limitation. He would furthersubmit that Dr. Sayed Mukhtar had instituted RCS No.990 of1988 against the plaintiffs seeking relief of injunction. The suitabated on 19.8.1992 even before that RCS No.682 of 1984 wasfiled by Dr.Sayed Mukhtar against the plaintiffs and it waswithdrawn unconditionally. Thus, prayer of partition which ismade in counter-claim is barred by Order II Rule 2 of the CivilProcedure Code on account of omission to claim such relief inR.C.S. No.682 of 1984 and RCS 990 of 1988. He would furthersubmit that mere mutation entry in the name of Thakubaiwould not bestow title or possession in her favour in respect ofsuit property when Thakubai was never in possession, he couldnot have put doctor Sayed Mukhtar in possession at the time ofexecution of sale-deed dated 8.3.1984. Therefore, in absenceof pleadings as to when the defendants came into possession ofthe suit property, present suit would be barred by limitation. 6 SA 320.23+CA.odtTherefore, he urges that substantial questions of law requiresto be framed on aforesaid aspects and second appeal needs tobe admitted.8.Per contra, Mr. Bhandari learned advocateappearing for respondent nos.1 to 3 submit that both theCourts have rightly considered factual and legal aspects of thematter and recorded concurrent findings of fact, which calls nointerference in Second Appeal. He would submit that so far asissue of limitation is concerned, both the Courts have recordedfinding that the suit for partition raised by way of counter-claim is well within limitation. Further, defendants in counter-claim have not raised plea of adverse possession. Therefore,such contention cannot be considered. 9.Having considered submissions advanced bylearned advocates appearing for respective parties, it can beobserved that, undisputedly, suit land was received byMainabai and Thakubai as per order passed by the revenueauthorities in proceeding for Redemption for Mortgage.Although, name of Mainabai was recorded initially, name ofThakubai was taken on record as co-owner alongwithMainabai. Both of them were enjoying possession of the 7 SA 320.23+CA.odtproperties. Lateron, Thakubai transferred half portion of theland to Dr. Sayed Mukhtar and after Dr. Sayed Mukhtar’sdeath, defendant no.4 to 6 were recorded as his heirs. Lastly,defendant nos.1 to 3 purchased the land from heirs of DoctorSayed Mukhtar under sale-deed dated 19.4.2011. 10.So far as ownership of Thakubai is concerned, it isa matter of record that Thakubai and Mainabai were cousins.Their fathers had mortgaged the property and after death oftheir fathers, proceeding for redemption for mortgage wasinitiated by them and same was allowed by the order ofDivisional Commissioner at Aurangabad. In this scenario,there cannot be dispute as regards to the title of Thakubai tothe extent of one half share in the suit property. The aforesaidfactual aspect is practically admitted by plaintiff during hiscross-examination. Once it is held that Thakubai had title toone half share of the suit land, Dr. Sayed Mukhtar would gettitle as per registered sale-deed executed by Thakubai and indeference to that as per sale-deed executed by L.Rs. of Dr.Mukhtar, defendant nos.1 to 3 derived title under registeredsale-deed of 2011. 8 SA 320.23+CA.odt11.Mr. Kulkarni, learned advocate appearing for theappellants submitted that, suit for partition could not havebeen entertained after 28 years when Thakubai or MukhtarAhmed never claimed such relief during their lifetime. Now,such plea is sought to be raised on behalf of defendant nos.1 to3 on the basis of the sale-deed of 2011. It is pertinent to notehere that, section 44 of the Transfer of Property Act wouldapply in facts of the present case. However, to seek partition,no specific limitation is provided under law. Learned DistrictJudge has considered aforesaid aspects and recorded thatdefendant nos.1 to 3, being strangers, in absence of possessionthey had only remedy to seek partition. They have rightly filedthe suit/counter-claim within one year from the date ofpurchase. Therefore, even by applying Article 113 of theLimitation Act, suit is held to be within the period of limitation.No error can be found in the order of the learned DistrictJudge.12.Mr. Kulkarni, further submits that, plaintiffs arecontinuously in possession of the suit property since the date ofredemption of mortgage. There is no evidence as to possessionof Thakubai or Dr. Mukhtar. Defendants have admitted 9 SA 320.23+CA.odtpossession of the plaintiffs. Both the Courts have also recordedfindings to that effect. In these circumstances, plaintiffs areentitled to claim a title by way of adverse possession.Therefore, suit seeking decree of possession would be barredby limitation. It is difficult to accept aforesaid contentionsraised on behalf of the plaintiffs. Pleadings in the suit or inwritten statement to the counter-claim nowhere suggests thatplaintiffs had raised the plea of adverse possession. On theother hand, they are asserting their own title over the suitproperty. As rightly observed by learned District Judge, unlessplaintiffs admits title of the Thakubai or present defendants,plea of adverse possession cannot be entertained. In that viewof the matter, aforesaid contentions cannot be accepted.13.Mr. Kulkarni, learned advocate appearing for theappellants further submits that Dr. Mukhtar had instituted twodifferent suits during his lifetime. Firstly, Dr. Mukhtar hadinstituted R.C.S. No.682 of 1984, however, it was withdrawnby him. Similarly, subsequent suit i.e. R.C.S. no.990 of 1982instituted by him seeking perpetual injunction has been abatedon 19.8.1992. Therefore, relief of partition and separate 10 SA 320.23+CA.odtpossession as claimed by way of counter-claim would be barredby law. Order II Rule 2 of Civil Procedure Code reads thus :-2. Suit to include the whole claim :-(1) Every suit shall include the whole of the claimwhich the plaintiff is entitled to make in respect ofthe cause of action; but a plaintiff may relinquishand portion of his claim in order to bring the suitwithin the jurisdiction of any Court.14.A reference can be given to observations of theSupreme Court of India in case of Coffee Board Vs. Ramesh ExportsPrivate Limited reported in (2014) 6 Supreme Court Cases 424,wherein in paragraph no.11 observed thus :-“11. The bar of Order 2 Rule 2 comes intooperation where the cause of action on which theprevious suit was filed, forms the foundation of thesubsequent suit; and when the plaintiff could haveclaimed the relief sought in the subsequent suit, inthe earlier suit; and both the suits are between thesame parties. Furthermore, the bar under Order 2Rule 2 must be specifically pleaded by thedefendant in the suit and the Trial Court shouldspecifically frame a specific issue in that regardwherein the pleading in the earlier suit must beexamined and the plaintiff is given an opportunityto demonstrate that the cause of action in thesubsequent suit is different.”15.Pertinently, previous suits instituted by Dr. SayedMukhtar were on the basis of cause of action arose to him sincehe had purchased land under registered sale-deed and heclaimed obstruction/threat of dispossession at the hands ofpresent plaintiffs. The cause of action pleaded in previous suits 11 SA 320.23+CA.odtwas totally different. Pertinently, no specif plea of bar underOrder II Rule 2 is taken in written statement to counter-claim.No issue was framed in suit. However, when plaintiffs haveinstituted present suit seeking decree of declaration andperpetual injunction asserting their title and possession,defendants have got cause of action to raise the counter-claimand seek decree of partition. Cause of action pleaded in thetwo earlier suits is altogether different. Therefore, it is difficultto hold that bar under Order II Rule 2 of the Civil ProcedureCode can be invoked in facts of the present case. In result,contention of the appellants/plaintiff on this point is also notacceptable.16.In view of the fact that previous suits were basedon independent cause of actions, present suit would not bebarred by Order II rule 2 of the Civil Procedure Code. In theresult, there is no merit in this Second Appeal. No substantialquestions of law arises for consideration. Hence, it standsdismissed. Pending civil applications, if any, also standsdisposed off.17.At this stage, Mr. Kulkarni, learned advocateappearing for appellants submits that the interim protection 12 SA 320.23+CA.odtalready granted may be continued for a further period of sixweeks, so as to enable the appellant to approach the SupremeCourt by filing the S.L.P.18.Considering submissions advanced and nature oflitigation, this order shall be kept in abeyance for a period ofsix weeks from today. ( S. G. CHAPALGAONKAR ) JUDGE.…aaa-/d