Anand S/O Kantilal Jaiswal vs Rukhmabai Wamanrao Rathod And ...
2017 Latest Caselaw 9662 Bom

                                                    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.)
 -------------------------------------------------------------------------------------------
 Shri A. V. Bhide, Advocate for the petitioner/applicant.
 Shri A. S. Dhore, Advocate for the respondents.
 -------------------------------------------------------------------------------------------
                                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

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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

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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

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

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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