Dnyanoba Shyamrao Gavli And ... vs Sudam Shyamrao Gavli
2017 Latest Caselaw 4208 Bom

                                          1                    WP 3085 of 2013

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                         Writ Petition No. 3085 of 2013

     1)      Dnyanoba s/o Shyamrao Gavli,
             Age 55 years,
             Occupation : Agriculture.

     2)      Anerao s/o Dnyanoba Gavli,
             Age 36 years,
             Occupation : Agriculture
             Both R/o Zari,
             Taluka and District Parbhani.                   ..    Petitioners.

                      Versus

     *       Sudam s/o Shyamrao Gavli,
             Age 64 years,
             Occupation : Agriculture,
             R/o Zari,
             Taluka and District Parbhani.                   .. Respondent.

                                          ----

     Shri. Shrikishan S. Shinde, Advocate, for petitioners.

     Shri. Sanket S. Kulkarni, Advocate, for respondent.

                                          ----

                                  Coram:         T.V. NALAWADE, J.

                                  Date:          7 July 2017.

     ORAL JUDGMENT :


     1)               Rule,    rule   made       returnable        forthwith.         By

     consent heard both the sides for final disposal.





                                      2                WP 3085 of 2013

     2)               The petition is filed by the defendants of

Regular Civil Suit No.104/2010 presently pending before

the Court of the Civil Judge, Senior Division, Parbhani for

the relief of declaration in respect of agricultural land. In

the suit at Exhibit 29 application was moved by the

present petitioners, defendants for framing of issue of

limitation. This application is rejected by the trial Court.

3) This Court has carefully gone through the

pleadings. The plaintiff is claiming his right as successor

of Shyamrao and the defendants are claiming right not

only as successor of Shyamrao but under sale deed

executed by Shyamrao on 4-6-1982. Declaration is claimed

by the plaintiff that he is owner at least of half portion of

the suit property. Certificate of sale was issued under

tenancy law in favour of Shyamrao prior to 1982. In view

of these circumstances, separate declaration of ownership

of one-half portion is not possible and the declaration in

respect of sale deed dated 4-6-1982 also needs to be

claimed. If it is not claimed the trial Court will have to

consider this circumstance before considering the relief of

declaration of ownership claimed by the plaintiff. In view

3 WP 3085 of 2013

of these circumstances, this Court holds that issue of

limitation is necessary issue in the present matter.

4) In the result, the petition is allowed. The order

made by the trial Court on Exhibit 29 is quashed and set

aside and the application at Exhibit 29 is allowed. Rule is

made absolute in those terms.

Sd/-

(T.V. NALAWADE, J.)

rsl