High Court · 2024

Legal Reasoning

Tauseef 928-SA.183.2024.odtININ THETHE HIGHHIGH COURTCOURT OFOF JUDICATUREJUDICATURE ATAT BOMBAYBOMBAYBENCH AT AURANGABADBENCH AT AURANGABADCIVIL APPELLATE JURISDICTIONCIVIL APPELLATE JURISDICTIONSECOND APPEAL NO.183 OF 2024SECOND APPEAL NO.183 OF 2024 Yuvraj Sandu MahajanYuvraj Sandu Mahajan...Appellant...AppellantVersusVersus1.1.Babulal Damu Patil (Deceased),Babulal Damu Patil (Deceased),Through L.Rs.Through L.Rs.a.a.Bebabai Baburao Patil,Bebabai Baburao Patil,b.b.Smt. Bebabai Baburao Patil,Smt. Bebabai Baburao Patil,c. c. Dilip Baburao Patil, Dilip Baburao Patil,d.d.Sanjay Baburao Patil,Sanjay Baburao Patil,e. e. Alkabai Narayan Patil,Alkabai Narayan Patil,f. f. Mangalabai Bharat PatilMangalabai Bharat Patil2. 2. Vividh Karyakari Sahakari Society Ltd.,Vividh Karyakari Sahakari Society Ltd.,3. 3. Jivram Sandu Mahajan,Jivram Sandu Mahajan,4. 4. Gayabai Zagadu Patil,Gayabai Zagadu Patil,5. 5. Malanbai Shankar Patil. Malanbai Shankar Patil. …Respondents…Respondents_____________________________________________________Adv. Sanjay S. Dudhane h/f. Adv. V. R. Dhorde for Appellant._____________________________________________________CORAM :S. G. CHAPALGAONKAR, J.DATED : 28th NOVEMBER 2024.P.C.:-1. The Appellant-Original Plaintiff impugns judgment anddecree dated 27th September 2021 passed by learned District Judge,Jalgaon in Regular Civil Appeal No.73 of 2016 as well as the judgment1 of 6 Tauseef 928-SA.183.2024.odtand decree dated 2nd March 2016 passed by learned Civil Judge, JuniorDivision, Pachora in Regular Civil Suit No.74 of 2001. (The parties arereferred hereinafter as per original status in the suit).2.It is a case of the Appellant-Plaintiff that suit land bearingBlock Nos.134 and 139 along with Grampanchayat House Nos.30 and31 were owned by Keshav Hiraji Mahajan, thereafter it was inheritedby his wife-Bhagabai Keshav Mahajan. She had obtained loan from theDefendent No.2 Society. She bequeathed aforesaid property to Plaintiffunder a Will. The Defendant No.2-Society auctioned suit propertywithout following due process of law, alleging default in repayment ofloan by Bhagabai . The Defendant No.1 has been illegally shown aspurchaser of property vide auction dated 19th May 1980. The Plaintifffurther contended that in Regular Civil Appeal No.163 of 1985, Willexecuted by Bhagabai bequeathing property in his favor has beenapproved. The said decree has attended the finality. 3.The Defendants refuted Plaintiff’s claim contending that infact decree passed in Regular Civil Suit No.163 of 1985 endorsedauction of suit property admeasuring 86 R and consequentialownership of Babulal Damu Patil. The Appellant-Plaintiff had filedRegular Civil Suit No.521 of 1980 in the Court of Civil Judge, SeniorDivision, Jalgaon assailing auction process and consequential sale ofproperty in favour of Babulal Damu Patil, however, that suit was2 of 6 Tauseef 928-SA.183.2024.odtwithdrawn. Therefore according to defendants present is suit is barredby principles of Res-judicata. The auction sale of 1980 is sought to bechallenged by filing suit in the year 2001, hence, suit is hopelesslybarred by limitation. 4.The Trial recorded finding that Plaintiff failed to prove hisownership based on Will executed by Bhagabai or prove that auction ofthe property by Defendant No.2 in favour of Defendant No.1 is illegal.The Trial Court concluded that suit is barred by principles of res-judicata and provisions of limitation Act. 5.The Appellate Court also concurred with finding of trial courtand held that auction by Defendant No.2 in favour of Defendant No.1is legal and he acquired ownership of suit property. The AppellateCourt further endorsed finding of trial court as regards to bar of res-judicata and limitation of suit. 6.Mr. Sanjay Dudhane, learned Advocate appearing for theAppellant / Plaintiff vehemently submits that in Regular Civil SuitNo.163 of 1985 filed by maternal aunt of plaintiff, seeking relief ofpartition of suit property, plaintiff was added as Defendant. The Willdeed executed by Bhagabai bequeathing suit property to plaintiff hasbeen approved by court. He would further submit that auction sale in3 of 6 Tauseef 928-SA.183.2024.odtfavour of Defendant No.1 was illegal. Appellate Court has erroneouslydecided issues of limitation and res-judicata. 7. Apparently suit property was auctioned on 19th May 1980 byDefendant No.2-Vividh Karyakari Coop. Society Ltd, the sale becomeabsolute on 12th September 1980 in favour of Defendant No.1. Thesale certificate shows that the notices for delivery of possession wereserved upon Plaintiff and his family members. The Plaintiff has assailedauction proceeding in Regular Civil Suit No.521 of 1980. Later on, hewithdrew suit. Pertinently recovery certificate issued U/s. 101 againstBhagabai was never subjected to challenge under provisions ofMaharashtra Cooperative Societies Act, 1960. 8.One more suit, i.e., R.C.S. No.163 of 1985 was filed by thedaughters of Bhagabai against Plaintiff and Defendant No.1 (AuctionPurchaser) seeking relief of partition. The present suit property wasalso subject matter in that suit. The challenge was raised to the Willdated 3rd January 1984 executed by Bhagabai in favour of the Plaintiff.The Defendant No.1, auction purchaser claimed his ownership on thebasis of auction sale. Consequently, the issue was framed “As towhether Defendant No.4 (auction purchaser) proved that he becomeowner of 86 R land out of Gat No.134 through auction dated 12thNovember 1980?”. The said issue was answered affirmative. In R.C.A.No.155 of 1999 filed against decree in R.C.S. No.163 of 1985,4 of 6 Tauseef 928-SA.183.2024.odtPlaintiff’s ownership based on Will is approved but excluding 86 R landi.e. auctioned property. It is therefore, clear that issue of ownership ofDefendant No.1 in respect of 86 R land auction purchased by him hasattained finality as per decree in R.C.S. No.163 of 1985 which isconfirmed in R.C.A. No.155 of 1999. Therefore, Plaintiff has no rightto claim further relief in respect of said property in view of bar of res-judicata. Both fact finding Courts have concurrently held that suit isbarred U/s. 11 of CPC, no fault can be found with such findings. 9.The second aspect of the matter is that present suit has beeninstituted in the year 2001 reiterating contentions and challenge to theauction process by which Defendant No.1 acquired the ownership.Admittedly, Defendant No.1 has been put into possession of suitproperty in year 1980 in pursuance of sale certificate dated 12thSeptember 1980. Therefore, the present suit filed in the year 2001seeking declaration and possession is hopelessly barred by limitation.The Plaintiff was well aware about exclusion of his right andconferment of ownership and possession in favour of defendant No 1based on decisions in the previous litigation. The plaintiff cannot seekany more declaration against auction process and challenge acquisitionof title and ownership by defendant No. 1 after 21 years. Even going byarticle 58 or 113 of limitation act suit for declaration has to beinstituted within 3 years. The cause of action to seek such declaration5 of 6 Tauseef 928-SA.183.2024.odtfirst arose to plaintiff in year 1980 only. Hence suit is hopelessly barredby limitation. 10. Therefore, the concurrent findings recorded by the Courtsbelow on the point of limitation and res-judicata does not requireinterference. No substantial question of law arises for consideration inthe present second appeal. 11.Second appeal stands dismissed. (S. G. CHAPALGAONKAR, J.)6 of 6