1 J-CRA-70-17.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CIVIL REVISION APPLICATION (CRA) NO.70/2017
Anand s/o Kantilal Jaiswal,
Aged about : 42 years,
Occu : Business,
R/o C/o Bahadurali Waliali,
Near Sandip Mangalam,
Ward No.4, Gedam Nagar,
Yavatmal. ..... PETITIONER/
APPLICANT
(ORI. PLAINTIFF)
...V E R S U S...
1. Rukhmabai Wamanrao Rathod,
Aged about : 57 years,
Occu : Household.
2. Wamanrao s/o Zitaji Rathod,
Aged about : 67 years,
Occu : Agriculturist.
3. Vasanta s/o Wamanrao Rathod,
Aged about : 32 years,
Occu : Service.
All residents of village Tiosa,
Tq. & District Yavatmal. ... RESPONDENTS
(ORI. DEFT.)
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Shri A. V. Bhide, Advocate for the petitioner/applicant.
Shri A. S. Dhore, Advocate for the respondents.
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CORAM:-
ARUN D. UPADHYE, J.
DATED :
15/12/2017.
JUDGMENT :
1. Rule. Rule made returnable forthwith. Heard finally by consent of learned counsel for the parties.
2. By this application, the applicant has prayed to quash ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 01:31:05 ::: 2 J-CRA-70-17.odt and set aside the order dated 23/02/2017 passed by the Joint Civil Judge, Junior Division, Yavatmal below Exh.45 in Regular Civil Suit No.104/2015. The brief facts of the case are as under :-
3. The applicant / original plaintiff has filed suit for permanent injunction against the non-applicants / original defendants. The non-applicant No.1 filed written statement and made counter-claim and averred that the property was originally owned by Smt.Kalawatibai Yeshwantrao Ramekar, who executed Sale Deed in favour of one Babulal Lalsingh Chavan. It is alleged that the non-applicant No.1 was the real owner and said Babulal was a Benamidar.
4. The plaintiff also contended that he has filed application vide Exh.45 under Order 7 Rule 11 of the C.P.C. and objected the counter claim made by the non-applicants. It is contended in the application that the applicant has purchased the suit property on 16/04/2002 by a registered Sale Deed from Babulal. The non-applicant No.1 by filing counter claim, claimed the declaration of ownership and sought relief that the Sale Deed executed by Babulal in favour of the applicant is not binding upon him. According to the applicant, Babulal was real brother of non-applicant No.1 and therefore, the counter claim filed by the non-applicant No.1 is barred by law and therefore, the same counter claim be dismissed. It is also contended that the non-applicant ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 01:31:05 ::: 3 J-CRA-70-17.odt No.1 has not valued the counter claim, as per the Bombay Court Fees Act and therefore, the non-applicant No.1 be directed to pay the court fees according to law. Lastly, it is prayed that the same be rejected under Order 7 Rule 11 of the C.P.C.
5. The non-applicants / defendants have filed reply vide Exh.47 and denied the contention made in the application. The non- applicant No.1 has contended that he has right and interest in the suit property and therefore, he has legitimate claim and therefore, filed counter-claim. It is also contended that the provisions of Benami Act are not made applicable. The point of limitation is mixed question of law and fact and needs the trial. Lastly, it is prayed that application be rejected.
6. After hearing both the sides, the learned Civil Judge, Junior Division and J.M.F.C., Yavatmal has rejected application Exh.45 by its order dated 23/02/2017. The said order is assailed by the applicant / original plaintiff by way of civil revision application.
7. I have heard Shri A.V.Bhide, learned counsel for the applicant and Shri A.S.Dhore, learned counsel for the non-applicants.
8. Shri Bhide, learned counsel for the applicant submitted ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 01:31:05 ::: 4 J-CRA-70-17.odt that counter claim filed by the non-applicants is barred by limitation. He further submitted that the applicant has purchased the suit property in the year 2002 and obtained possession. The counter claim filed by the non-applicants in the said suit in the year 2015 is barred by limitation. The relief ought to have been claimed within three years from the date of sale deed. The learned trial Court has wrongly rejected the application Exh.45 and therefore, by allowing the revision application, the order under challenge be set aside.
9. Shri Dhore, learned counsel for the non-applicants has submitted that the non-applicants have claimed declaration of ownership as well as sought injunction. The non-applicants have prayed that the sale deed is not binding upon them executed by Babulal. The learned trial Court has rightly rejected the application and no interference of this Court is called for in the impugned order. The civil revision application, therefore be dismissed.
10. Considering the submission of respective sides and having gone through the impugned order as well as documents placed on record, I am of the considered view that no interference of this Court is called for in the impugned order. It is to be noted that the applicant / plaintiff has filed R.C.S. No.104/2015 for perpetual injunction. During the pendency of the suit, the applicant has also filed application under ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 01:31:05 ::: 5 J-CRA-70-17.odt Order 39 Rule 1 and 2 of CPC.
11. The defendants have filed written statement and also made counter claim claiming relief of declaration of ownership and perpetual injunction as well as dismissal of the suit filed by the applicant / plaintiff.
12. The contention of the applicant / plaintiff that the counter claim filed by the non-applicants is barred by law and cannot be accepted. It is to be noted that the non-applicants have also claimed ownership over the suit property as well as perpetual injunction asserting that they are in possession of the property.
13. The learned trial Court has observed that the question of cause of action and the limitation are mixed question of law and facts and therefore, detailed evidence is required. The learned trial Court also observed that though the defendants did not make proper valuation of the counter claim, the counter-claim cannot be dismissed. The learned trial Court was justified while dismissing the application. No interference of this Court is called for in the impugned order. The civil revision application filed by the applicant is devoid of any merit and liable to be dismissed and accordingly dismissed. Rule stands discharged. No costs.
JUDGE Choulwar ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 01:31:05 :::