Bombay High Court
Ramkrishna @ Bhaiyya Nathuji ... vs Tulsiram Namdeorao Punjaramji ... on 18 March, 2016
Bench: A.B. Chaudhari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Second Appeal No.350 of 2004
Ramkrishna @ Bhaiyya son of
Nathuji Dhale,
aged about 65 years,
occupation - Retired,
resident of Golibar Chowk,
Nagpur. ..... Appellant.
L.R. Of Org. Deft.
Versus
Tulsiram son of Namdeorao @
Punaramji Dande,
since dead, through his legal
representatives:- ..... Respondent.
Org. Plff.
A. Sandip son of Tulsiramji
Dande,
aged about 45 years,
occupation business,
resident of Harshad Restaurant,
Golibar Chowk, Jagnath
Budhwari Road, Nagpur.
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B. Uday son of Tulsiramji
Dande,
aged about 39 years,
occupation business,
C. Chandu son of Tulsiramji
Dande,
aged about 36 years,
occupation business,
Bar & Restaurant,
both B & C residents of Kanchan
Garoba Maidan, Nagpur.
D. Smt. Anusuyabai Tulsiramji Dande,
aged about 60 years,
occupation Household,
Golibar Chowk, Jagnath
Budhwari, Nagpur.
E. Smt. Surekha Subhashrao Nagpurkar,
aged about 49 years,
occupation Household,
resident of Sainagar,
Manewada Ring Road,
Nagpur.
F. Smt. Sunanda wife of Arvindrao
Khedekar,
aged about 47 years,
occupation Household,
resident of Chhatrapati Shivaji
Market Yard,
near South Gate,
Motinagar, Latur.
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*****
Mr. C.F. Bhagwani, Adv., for the appellant.
Mr. Moin, Adv., holding for Mr. Shabbir Hussain, Adv., for
respondent.
*****
CORAM : A.B. CHAUDHARI, J.
Date : 18th March, 2016
ORAL JUDGMENT:
01. Being aggrieved by the Judgment and Decree dated 2nd
May, 2005 passed by learned Twenty-sixth Joint Civil Judge [Junior
Division], Nagpur, in Regular Civil Suit No. 643 of 2001, by which the
suit filed by the respondent, plaintiff, was decreed and the decree was
confirmed by modification by learned First Ad Hoc Additional District
Judge, Nagpur, in Regular Civil Appeal No. 335 of 2003 on 26th March,
2004, the present Second Appeal came to be filed by the unsuccessful
defendant.
02. This Court had framed following Substantial Questions of
Law at Sr. Nos. 4 and 8 of the Memo of Appeal:-
"4. Whether the appellate Court below was justified
in not considering the provisions of Order II, Rule
2 C.P.C.?
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8. That whether the appellate court below was
justified in not taking into consideration that the
suit was barred by limitation?"
03. Mr. Bhagwani, learned counsel for the appellant, in support
of the appeal, assailed the impugned Judgments and decree, and
submitted that the courts below ought to have pressed into service the
provision of Order-II, Rule 2, Civil Procedure Code, and dismissed the
suit. He further argued that the suit was also barred by law of
limitation and as such the same should have been dismissed.
04. Per contra, learned counsel for the respondent supported
the decree in question passed by the Trial Court and confirmed by
learned Lower Appellate Court, and submitted that there are
concurrent findings of facts on both these issues and, therefore, there
is no need to interfere with the concurrent findings. He, therefore,
prayed for dismissal of the appeal.
05. I have heard learned counsel for the rival parties at length. I
have perused the entire record.
06. Learned counsel for the appellant argued on the above said
two questions framed by this Court. I have perused the reasons
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recorded by the Lower Appellate Court on the first question and I quote
paragraphs 12 and 13 from the Lower Appellate Court's Judgment,
which read thus:-
"12. As to Point No.2 :- The civil suit No. 548-A/59
was filed by deceased Manabai and others against
Nathuji for specific performance of contract. In that
proceeding Manabai was made party subsequently. In
that suit the main contesting parties were Manabai and
Nathuji. It was the contention of Manabai that she is
entitled to get the specific performance of contract on
the basis of Deed of Reconveyance executed by Nathuji
on 1.2.52. The learned Advocate for the defendant
vehemently urged that the relief of possession claimed
in the suit ought to have been preferred by Manjulabai in
the earlier proceeding and as Manjulabai did not prefer
the claim of possession on the strength of sale deed,
this suit is untenable as per provision of Order-II, Rule 2
of the Code of Civil Procedure (for short C.P.C.).
13. It is significant to note the civil suit no. 548-
A/59 was filed by Manabai and others against deceased
Nathuji for specific performance of contract. Therefore
the main litigating party in that civil suit No. 548-A/59
were Manabai and Nathuji. No relief was claimed by
Manabai against Manjulabai. As such Manjulabai was
the formal party in that suit. There was no reason for
Manjulabai to claim possession of the house against
Nathuji on the basis of sale deed. The main claim in that
suit was of Manabai to get the specific performance of
contract on the basis of agreement of reconveyance
executed between Manabai and Nathuji. In any case
Manjulabai could not prefer the claim of possession on
the basis of sale deed against Nathuji in Civil Suit No.
548-A/59 because it should have been contrary and
inconsistence to the main claim of specific performance
of contract preferred by Manabai. The cause of action
accrued in earlier suit no. 548-A/59 had occurred on the
basis of deed of reconveyance dt. 1.2.52. That time the
sale deed of Manjulabai was not in existence. The cause
of action of this suit is based on the title accrued due to
the execution of sale deed (Exh.108) in favour of
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Manjulabai executed by Manabai and others on 21.6.58.
Therefore, an independent suit preferring claim of
possession on the basis of Sale deed executed on
21.6.58 by Manabai in favour of Manjulabai is just and
proper and it does not hit by the provision of Order II,
Rule 2 of the C.P.C. Therefore, the point no.2 is
answered in negative."
07. The reasons given by the Lower Appellate Court are good
enough and I fully agree with the same. Hence the Question No.1 will
have to be answered in negative.
08. As to Question No.2, I find that the learned Lower Appellate
Court has given the answer in para 16 of its Judgment, which I quote
hereunder:-
"16. The learned Advocate for the defendant urged
that there is no evidence to show that defendant had
taken forcible possession of the suit house i.e., one part
of the house. In earlier litigation the point of forcible
possession was raised and in Civil Suit no. 548-A/59
[Exh.102]. It was specifically held by the court that
Nathuji had taken forcible possession of one block i.e.,
suit house. That finding is binding. Even otherwise the
suit for possession can be filed within a period of 12
years on the basis of title as per article 65 of the
Limitation Act. The period of limitation starts when the
possession of the defendant becomes adverse to the
plaintiff. The defendant or his father Nathuji never
asserted hostile title either against Manabai or
Manjulabai. The claim for possession is certainly within
limitation."
I agree with the view taken by the learned Lower Appellate
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Court that the suit was not barred by limitation for the reasons given in
para 16. Hence I answer Question No.2 in negative. In the result, I
make the following order:-
ORDER
Second Appeal No. 350 of 2004 is dismissed.
Judge
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