Admittedly, Bhima
died intestate and therefore, his estate or property ought to be
distributed in accordance with provisions of Hindu Succession Act,
1956. Mere long possession or entries for many years in the revenue
record cannot confer title on Mathura or the appellants since it has
not been shown that Bhima had by any legal instrument
relinquished his share in the property or estate in favour of Mathura
or Appa. It is in that situation, Lower Appellate Court has partly
decreed the suit with which I find no fault.
BENCH AT AURANGABAD.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
SECOND APPEAL NO. 173 OF 2013
Kondiba s/o Shankar Navgire
VERSUS
Smt. Jijabai w/o Ramchandra Dhanke
CORAM : A. B. CHAUDHARI, J.
Dated: August 02, 2013
Citation; 2013 (6) MH L J 231
Heard Mr. Deshmukh, learned counsel for the
appellants. Mr. Deshmukh, strenuously contended that Lower
Appellate Court committed an error in reversing the decree of the
trial court and partly decreeing the suit to the extent of declaration
in the absence of any prayer. According to him, the suit was clearly
barred by limitation in relation to the sale deeds of the year 1973
and 1983 and the mutations in favour of the vendor of the
appellants were carried in the year 1970 which were never
challenged. He fairly stated that this issue about limitation was not
framed by the Trial Court nor was argued before the Courts below.
However, the same can be urged before this court since it is a pure
question of law. He relied on the decision of learned Single Judge of
this Court in case of Nagorao Narayan Diwane deceased through Lrs.
Smt. Laxmibai wd/o Nagorao Diwane and others Vs. Narayan
Awadutrao Dighe since deceased Through Lrs. Smt. Sulochana
Narayan Dighe and ors. Reported in 2000 (2) Mh.L.J. 273. He then
argued that the Lower Appellate Court has given no importance to
the revenue record or mutation entries which were never challenged
and thus according to him, the same constitutes a substantial
question of law.
2.
Per contra, Mr.Kolpe learned counsel for respondents
supported the impugned judgment rendered by Lower Appellate
Court and argued that there is no instrument to show how the estate
of Bhima went to either Appa or his wife Mathura. Since Bhima died
intestate, his estate must be distributed in accordance with
succession provided by law and that is why there is no need to
challenge the sale deeds in favour of the appellants. He then argued
that, at any rate the sale deed to the extent of share of Mathura has
been protected. He therefore, submitted that the Lower Appellate
I have heard learned counsel for the rival parties.
3.
Court has correctly decreed the suit in part.
Perused impugned judgment recorded by the Lower Appellate Court.
As to the aspect of limitation, it is an admitted fact that said issue
was not at all raised before the trial court or First Appellate Court,
and it is being raised for the first time by Mr. Deshmukh in this
Second Appeal. There is a decision of the (4 Judges ) of the
Supreme Court in case of Banarasi Das and Kundanlal Vs. Kanshi
Ram and ors. reported in AIR 1963 Supreme Court 1165 herein in
paragraph No.15 observed thus :
“15. The High Court has overlooked the fact that
even upon the argument addressed before it on behalf
of Kanshi Ram, the question of limitation was not
one purely of law but was a mixed question of fact
and law and, therefore, it was not proper for it to be
raised for the first time in argument. We are
satisfied that what the High Court has done has
caused prejudice to some of the parties to the suit
and on that ground alone, we would be justified in
setting aside its decision. If the High Court felt
overwhelmed by the provisions of S.3 of the
Limitation Act, it should at least have given an
opportunity to the parties which supported the decree
of the trial Court to meet the plea of limitation by
amending their pleadings. After allowing the
pleadings to be amended, the High Court should have
framed as issue and remitted it for a finding to the
trial Court. Instead of doing so, it has chosen to
treat the pleadings of one of the defendants as
conclusive not only on the question of fact but also
on the question of law and dismissed the suit. It is
quite possible that had an opportunity been given to
the defendants they could have established, in
addition to proving the dates on which the
summonses were served, that the suit was not barred
by time because of acknowledgments. In the course
of the discussion, the High Court has said that it was
not suggested before it anyone that the claim was not
barred by reason of acknowledgments. Apparently,
no such argument was advanced before it on behalf
of the plaintiff and the defendant Banarsi Das
because the counsel were apparently taken by
surprise and had no opportunity to obtain
instructions on this aspect of the case. We are clearly
of opinion that the High Court was in error in
allowing the plea of limitation to be raised before it
particularly by defendants who had not even filed a
written statement in the case. We do not think that
this was a fit case for permitting an entirely new
point to be raised by a noncontesting party to the
Thus, the submission based on limitation, which is
4.
suit.”
raised by Mr. Deshmukh, learned counsel for appellants before this
Court will have to be answered against the appellants.
5.
Next question is about succession. Admittedly, Bhima
died intestate and therefore, his estate or property ought to be
distributed in accordance with provisions of Hindu Succession Act,
1956. Mere long possession or entries for many years in the revenue
record cannot confer title on Mathura or the appellants since it has
not been shown that Bhima had by any legal instrument
relinquished his share in the property or estate in favour of Mathura
or Appa. It is in that situation, Lower Appellate Court has partly
decreed the suit with which I find no fault. At the same time, Lower
Appellate Court has taken care in consonance with the judgment of
the Supreme Court in case of Khemchand Shankar Choudhary Vs.
Vishnu Hari Patil reported in 1983 (1) SCC 18, protected the
interest of the purchaser.
6.
In view of above, it is clear that learned Lower Appellate
Court has rightly applied the law and passed the decree. Neither I
find any fault nor any substantial question of law involved is in this
second appeal. Hence following order is passed.
ORDER
Second Appeal No. 173/2013 is summarily dismissed.
No costs.
...
( A. B. CHAUDHARI )
JUDGE
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