Bombay High Court
Satyabalkrushna @ Babarao ... vs Govind Bapurao Shinde on 2 August, 2017
Bench: S.P. Deshmukh
1 WP-9596.17.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO. 9596 OF 2017
1. Satyabalkrushna @ Babarao
s/o Hanmantrao Shinde
Age 62 years, occup. Agril.,
R/o Halda, Tq. Kandhar,
Dist. Nanded
2. Chakradhar s/o Hanmantrao Shinde
Age 57 years, occup. Agri. & Service,
R/o Halda, Tq. Kandhar, Dist. Nanded,
at present R/o Vishnupuri, Asarjan Camp,
Nanded, Tq. and Dist. Nanded
3. Prakash s/o Hanmantrao Shinde, .. Petitioners/
Age 55 years, occup. R/o Halda, Original
Tq. Kandhar, District - Nanded. Defendants
versus
Govind s/o Baburao Shinde,
Age 54 years, occup. Agril. & service,
R/o Halda, Tq. Kandhar, Dist. Nanded,
At present r/o Pramila Apartment, A-Wing,
Flat No.103, Parwadi, Kharegaon, .. Respondent/
Near Fish Market, Kalva, Thane, Original
Dist. Thane Plaintiff
----
Mr. Kishor J. Ghute Patil, Advocate for petitioners
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2 WP-9596.17.doc
CORAM : SUNIL P. DESHMUKH, J.
DATE : 2nd August, 2017
ORAL JUDGMENT :
1. Heard learned counsel appearing on behalf of the
petitioners.
2. Petitioners - original defendants are before this court
purporting to challenge order dated 27-02-2017 whereunder
request of the present petitioners under Exhibit - 24 in
regular civil suit no. 183 of 2015 to frame an issue pursuant
to section 9A of the Code of Civil Procedure, 1908 as they had
raised objection to the jurisdiction of the court on the ground
of limitation has been rejected.
3. It appears to be the case of the present petitioners
which can be reproduced as contained in paragraphs no. 3
and 4 of the application Exhibit - 24, reading thus:
'' 3] That, the contention of para no. 11 of the plaint are
base-less. The dismissal of the appeal by District
Superintendent of land record will not be cause of action to
file the present suit. The Maharashtra land revenue code
1966 provide the appeal procedure for the same. The plaint
3 WP-9596.17.doc
is a not pleaded about the date of 27/11/2015. The
defendant suddenly denied the ownership of plaintiff when
according to the plaintiff measurement was completed on
date 09/12/2014. It is cleastral clear that plaintiff is trying to
cover his plaint within the limitation.
4] That, the on dated 30/11/2011 plaintiff field appeal
before District Superintendent of land record Nanded for
the amendments and corrections in the record of survey no.
52 B, the defendants served the notice of appeal on dated
20/08/2015. The said appeal dismiss by the District
Superintendent of land record Nanded on dated 16/11/2015
for the cause of limitation. Said order also challenged by
the plaintiff before Deputy Director of Land record
Aurangabad said is pending and also plaintiff filed the
present suit on same of cause of action. Hence present
plaint is hit by limitation. To decide the present matter and
for natural justice it is just and proper. To frame the
preliminary issue on the point of limitation. ''
4. The trial court while dealing with the same has observed
as under :
'' 08- Having heard the learned counsel for both the sides at
large, I have gone through the entire pleadings of both the
parties, nature of the claim and grievances raised therein. I
have also gone through the documents filed by the plaintiff
4 WP-9596.17.doc
and the defendants and ratio laid down by the Hon'ble
Bombay High Court, relied upon by the defendants. I gave
my anxious consideration to all the aspects of the matter and
find that, the plaintiff filed present suit for declaration of
ownership in respect of gut No. 259 (old survey no.52-A)
admeasuring 11 A 20 R. He claiming possession of
encroached portion of 24 R land and perpetual injunction in
respect o 10 A 36 R. Dispute is in respect of correction of
revenue record is pending between the parties before
concerned authorities. Plaintiff claiming to be owner of the
suit property as his father get the same in partition.
Thereafter, the plaintiff become the lawful owner and in
possession of the suit property. However, defendants not
filed written statement to answer the claiming of plaintiff.
09- It is no doubt true that, as per the framework of
Section 9-A of C.P.C., where at the hearing of the
application relating to interim relief in a suit, objection to
jurisdiction is taken such issue to be decided by the court as
a ''Preliminary-Issue''. The view taken by the Hon'ble High
Court in a case cited supra at serial Nos. 1 and 2 is certainly
applicable to the averments made by the learned counsel for
the defendants. The plea of limitation is a plea which goes
to the jurisdiction of the court. However, the facts and
circumstances may be different from case to case. In some
cases, the issue of limitation may be a pure question of law
and in some cases it may be mixed question of law and fact.
5 WP-9596.17.doc
The facts and the circumstances of the cases relied by the
defendants are different to that of the present case. It is no
doubt true that, the jurisdiction has to ascertained from the
fact alleged in the plaint.
10- In the matter at hand, the claim is based upon the
cause of action dated 27/11/2015. The instant suit is not
only for the injunction and declaration, but in addition to
this plaintiff is also claiming possession by removing
encroachment. In para no. 11 of the plaint it is pleading of
the plaintiff that, on the basis of order dated 16/11/2015
passed by the Deputy Superintendent of Land Records,
Nanded, defendants taking advantage and on 27/11/2015
they denied the ownership of plaintiff. Hence, the said cause
of action arises to file the present suit. Looking to the nature
of the dispute and the grievances raised therein, I am of the
view that the issue of limitation involved in this case is not a
pure question of law, but it is a mixed question of law and
facts. In such circumstances, I come to the conclusion that,
the objection on the point of jurisdiction on the ground of
limitation raised at this stage under Section 9-A of C.P.C. is
not maintainable. In fact, such objection can be taken into
consideration by framing Preliminary issue under Order XIV
Rule 2 of C.P.C. And it will be decide along-with all issues
on merits. ''
6 WP-9596.17.doc
5. Having regard to aforesaid reasons as are appearing in
the impugned order, it does not appear that any interlude in
the proceedings of the suit is required.
6. Writ Petition, as such, stands rejected, keeping all the
contentions of the petitioner open.
SUNIL P. DESHMUKH,
JUDGE
pnd
