Bombay High Court
Dhiraj S/O Mangalprasad Jaiswal vs Smt. Ranibai Wd/O Shriram Jaiswal ... on 28 February, 2017
Bench: Ravi K. Deshpande
sa173.14.J.odt 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.173 OF 2014
Dhiraj s/o Mangalprasad Jaiswal
Age 32 years, Occ: Business,
R/o Gadchandur, Tq. Korpana,
District Chandrapur. Throught power of
attorney Shri Prashant Shrikant Jaiswal
R/o Prabhat Colony, Shilagan Road,
Amravati. ....... APPELLANT
...V E R S U S...
1] Smt. Ranibai wd/o Shriram Jaiswal,
Age 70 years, Occ: Agriculturist,
R/o Pusla, Tq. Warud,
District Amravati.
2] Ashok Shriram Jaiswal,
Age 38 years, Agriculturist,
R/o Pusla, Tq. Warud,
District Amravati.
3] Omprakash Shriram Jaiswal,
Age 40 years, Occ: Agriculturist,
R/o Pusla, Tq. Warud,
District Amravati.
4] Sau. Chhaya w/o Harikisan Jaiswal,
Age 45 years, Occ: Household,
R/o C/o Harikisan Jaiswal,
Chhoti Bazar, Paratwada,
District Amravati.
5] Sau. Kanchan w/o Madan Jaiswal,
Age 43 years, Occ: Household,
R/o Pusla, Tq. Warud,
District Amravati.
::: Uploaded on - 02/03/2017 ::: Downloaded on - 05/03/2017 00:43:48 :::
sa173.14.J.odt 2/6
6] Sau. Asha w/o Ashok Jaiswal,
Age 36 years, Occ: Household,
R/o C/o Ashok Pan Centre,
Near Durga Mandir, Loha Pul,
Sitabuldi, Nagpur.
7] Sau. Neeta w/o Girdhari Jaiswal,
Age 35 years, Occ: Household,
R/o Pusla, Tq. Warud,
District Amravati.
Amendment 8] Shrikant Shivprasad Jaiswal,
carried out as per Age 50 years, Occ: Agriculturist,
Registrar (J) order
dated 14.08.2014 R/o Plot No.156, Flat No.B-3,
Hemkalash Apartment, Near Sai
Garden, Sai Nagar, Amravati,
Tah. & District Amravati. ....... RESPONDENTS
-------------------------------------------------------------------------------------------
Shri C.B. Dharmadhikari, Advocate for Appellant.
Shri A.S. Joshi, Advocate for Respondent Nos.1, 2, 4 to 7.
-------------------------------------------------------------------------------------------
CORAM: R.K. DESHPANDE, J.
th FEBRUARY, 2017.
DATE: 28
ORAL JUDGMENT
1] The Trial Court passed a decree for partition and
separate possession. The plaintiff-Dhiraj Mangalprasad Jaiswal is
held entitled to 1/3rd share in the suit property being the legal heir
of Nirmalabai w/o Mangalprasad Jaiswal. It is further held that
the defendant No.1-Shrikant shall be entitled to 1/3 rd share,
whereas the defendant Nos.2 to 8 the legal heirs of Shriram will
be entitled to 1/3rd share together. A decree for partition and
sa173.14.J.odt 3/6
separate possession was passed.
2] The lower Appellate Court has concurred with all the
findings recorded by the Trial Court. However, it holds that the
suit was barred by the law of limitation prescribed under Article
110 of the Limitation Act and the suit was bad for mis-joinder of
necessary party namely the sisters of the plaintiff.
3] On 20.02.2017 this Court passed a detailed order as
under:
The trial Court passed a decree for 1/3 rd share in
the suit property in favour of the plaintiff. The lower
appellate Court has set aside the decision of the trial
Court and the suit for partition and separate possession
has been dismissed. Hence, the original plaintiff is
before this court in this second appeal.
The suit property was self acquired property of
one Shivprasad who had two sons, namely Shrikant
and Shriram and one daughter namely Smt.
Nirmalabai. The plaintiff is the son of Nirmalabai. The
defendant No.1 is Shrikant whereas defendant No.2 to
8 are the sons of Shriram. The mother of the plaintiff
died on 20.01.1982 whereas grand-father Shivprasad
died on 10.08.1982. The plaintiff attained the majority
on 28.10.1993 and the suit was filed for partition and
separate possession on 30.04.2005, after issuing notice
to the defendants for partition and separate possession.
The lower appellate Court reversed the findings
recorded by the trial Court essentially on two grounds;
(1) that the suit was barred by law of limitation as
contained under Article 110 of the Limitation Act and
(2) for non joinder of necessary party, namely the
sisters of the plaintiff. Rests of the findings recorded by
the trial Court are not interfered with by the lower
appellate Court.
sa173.14.J.odt 4/6
In the background of the undisputed factual
position pointed out above, Admit on the following
substantial question of law.
[i] Whether lower appellate Court committed an
error in holding that the suit was barred by the law of
limitation, particularly when the mother of the plaintiff
predeceased her father and the plaintiff attained the
majority on 28.10.1993 i.e much after the death of
mother and the suit was filed on 20.04.2005?.
[ii] Whether the lower appellate Court could have
held that the suit was liable to be dismissed for non
joinder of the necessary party, particularly when the
trial Court recorded the finding that the suit was not
liable to be dismissed for non joinder of sisters as
necessary party in the suit?.
Shri Joshi, the learned counsel appearing for the
respondent waives service of notice.
Shri Joshi, the learned counsel appearing for the
respondents submits that the possibility of the remand
of the matter back to the lower appellate Court can be
considered by this Court.
Hence, put up this matter in the next week on
27.02.2017 for final disposal at the end of admission
Board.
The question of passing an interim order shall be
considered on the returnable date.
4] The learned counsels are accordingly heard in the
matter. The suit property was the self-acquired property of
Shivprasad who had two sons, namely Shrikant and Shriram and a
daughter Nirmala. Nirmala died on 20.01.1982 and the plaintiff is
sa173.14.J.odt 5/6
the son of Nirmala. The defendant No.1-Shrikant is the son of
Shivprasad, whereas the defendant Nos.2 to 8 are the sons of
Shriram. Nirmala, the mother of the plaintiff, predeceased her
father Shivprasad who died on 10.08.1982. The plaintiff attained
majority on 28.10.1993 and the suit was filed on 30.04.2005
on the basis of notice dated 22.03.2005 at Exh.40.
5] There is no dispute raised about applicability of
Article 110 of Limitation Act to count the period of limitation.
The period of limitation starts running from the date when the
exclusion becomes known to the plaintiff. In the present case,
when Shivprasad and Nirmala died in the year 1982, plaintiff was
minor and he attained the majority on 28.10.1993. Hence, the
limitation would start running from 28.10.1993. The suit for
partition was filed on 30.04.2005 or even if it is 11.07.2005, the
suit would be within a period of 12 years and could not have been
held by the law of limitation by the lower Appellate Court.
The Trial Court recorded the finding that the suit was within a
period of limitation, and hence the finding of the lower Appellate
Court will have to be set aside to restore the finding of the Trial
Court. The substantial question of law at Sr. No.1 is answered
accordingly.
sa173.14.J.odt 6/6
6] So far as the substantial question of law regarding
non-joinder of necessary party is concerned. It is not in dispute
that the plaintiff had four sisters and all of them would be
claiming through their mother Nirmala and they shall together
take 1/3rd share in the suit property. The Trial Court records the
finding that if the sisters of the plaintiff wanted to claim share in
the property held by the plaintiff then it shall be open for them to
file a separate suit and the suit in question cannot be dismissed for
non-joinder of necessary party. According to the Trial Court,
sisters were not necessary party. The lower Appellate Court
committed an error in holding that the sisters were necessary
party and the suit was liable to be dismissed for non-joinder of
necessary party in the suit. The substantial question of law at Sr.
No.2 is answered accordingly.
7] In the result, the second appeal is allowed.
The judgment and order dated 13.12.2013 passed in Regular Civil
Appeal No.146 of 2012 is hereby quashed and set aside and the
decree passed by the Trial Court on 30.11.2007 in Regular Civil
Suit No.133 of 2005 is restored. No order as to costs.
JUDGE
NSN
