Ratnakar S/O Pralhad Deoras And ... vs Vyankatesh S/O Shamrao Fulmali ...
2017 Latest Caselaw 983 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH, NAGPUR


                          SECOND APPEAL NO. 67 OF 2012


 1.          Ratnakar Pralhad Deoras
             (deceased) through L.Rs.

 1(i)        Smt. Pushpa Wd/o Ratnakar Deoras,
             aged about 73 years, Occ. Household,
             R/o. House No. 27, Ward No.7, Ganeshpeth,
             Subhash Road,Nagpur, Tah. & Distt.
             Nagpur.

 1(ii)       Yashwant s/o. Ratnakar Deoras,
             aged about 45 years, Occ. Nil,
             R/o. House No. 27, Ward No.7, Ganeshpeth,
             Subhash Road,Nagpur, Tah. & Distt.
             Nagpur.

 1(iii) Ajay s/o. Ratnakar Deoras,
        aged about 44 years, Occ. Service,
        R/o. 602, Sankalp Building, 
        Mistri Comples, J.B. Nagar,
        Andheri (E), Mumbai-59.

 2.          Ashok s/o Janardhan Bidwai,
             aged about 64 years, Occ. Retired,
             R/o. Ganeshpeth, Subhas Road, 
             Nagpur, Tq. And Distt. Nagpur ......                     APPELLANTS
                                                                    Org.Plaintiffs

                               ...VERSUS...

 1.          Vyankatesh Shamrao Fulmali,
             (deceased) through L.Rs

 1(i)        Vivek Vyankatesh Fulmali,
             aged about 40 years, Occ. Service,
             R/o. Plot No. 174, Surendra Nagar,
             Nagpur, Tah. And Distt. Nagpur.


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 2.       Gangadhar Narayan Fulmali,
          aged about Major, Occ. Not known,
          R/o. Kali Nagar, Manewada, Nagpur,
          Tah. And Distt. Nagpur.

 3.       Shridhar Naresh Fulmali,
          aged about Major, Occ. Service,
          R/o. 502, 5th Floor, Dolphin Heritage,
          Opp. Militry Camp, Kalina,
          Santacruz (East), Mumbai. 400029

 4.       Baban Naresh Fulmali,
          aged about Major, Occ. Not known,
          Near Ganeshpeth Vyayamshala,
          Ganeshpeth Nagpur, Tah and Distt.
          Nagpur.

 5.       Dilip Rambhau Gaidhane,
          aged about Major, Occ. Auto Repairer,
          R/o. House No. 7, Near Jumle 
          Tailoring College, Ganeshpeth,
          Subhash Road, Nagpur, Tah and Distt.
          Nagpur.

 6.       Nandu Vasant Fulmali,
          aged about Major, Occ. Auto Driver,
          R/o. Ganeshpeth, Subhash Road, 
          Nagpur, Tah,. And Distt.Nagpur.

 7.       Vijaysingh Narayansingh Parihar,
          aged about Major, Occ. Business,
          R/o. Ganjipeth, Bhaldarpura, Nagpur,
          Tah. And Distt. Nagpur.............                         RESPONDENTS

 -------------------------------------------------------------------------------------------
 Shri N.B.Kalwaghe, counsel for appellants
 Shri S.P.Kshirsagar, counsel for Respondent no. 5
 None for other respondents though served 
 -------------------------------------------------------------------------------------------
                          CORAM: R. K. DESHPANDE, J.

rd DATE : 23 MARCH, 2017 .

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 ORAL JUDGMENT


          1]               The   Special   Civil   Suit   No.   376   of   1993   for

partition and separate possession was dismissed by the trial

Court on 20.07.2007. The lower appellate Court has

dismissed Regular Civil Appeal No. 450 of 2007 on

22.07.2011. Hence, the original plaintiffs are before this

Court in this second appeal.

2] On the question of plaintiffs' entitlement to a

decree for partition and separate possession, though the trial

Court was against the plaintiffs, the lower appellate Court

holds that the plaintiffs have established their entitlement for

3/10th share in the suit property. However, the lower

appellate Court has concurred with the findings of the trial

Court on the question of bar of limitation and therefore,

dismissal of the suit is confirmed in appeal.

3] On 03.10.2012, this Court admitted the present

matter, framing the substantial question of law as under;

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Whether the appellate Court was right in maintaining the finding recorded by the trial Court that the suit was barred by limitation?

Shri Kshirsgar, the learned counsel appearing for

respondent No.5 waived the service of notice and thereafter

all other parties were served and the matter was listed before

this Court on 17.03.2017, when the following order was

passed.

"Put up this matter on Thursday, 23.03.2017 at the end of Board.

If the counsel for the respondent remains absent, the matter shall be decided in accordance with law after hearing the learned counsel for the appellant. No further adjournment shall be granted".

4] Except the respondent No.5, who is represented

by Shri S.P.Kshirsagar, the learned counsel, no one appears

for the other respondents in spite of service of notice. The

matter is, therefore, heard on the aforesaid substantial

question of law.

5] The defendant Nos. 1 and 2 were held entitled to

3/10th share in the suit property under a decree passed in

earlier Special Civil Suit No. 145 of 1968, decided on

31.08.1972. The decree was not put to execution and on

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29.10.1981, the defendant Nos. 1 and 2 sold their undivided

3/10th share in the suit property to the plaintiffs by virtue of

registered sale deed dated 29.10.1981, marked as Exh.50.

6] The defendants have not filed any cross

objection, challenging the finding of the appellate Court on

the title of the plaintiffs on the basis of sale deed at Exh.50

but Shri Kshirsagar, the learned counsel appearing for

respondent No.5 has supported the findings recorded by the

lower appellate Court that the suit is barred by law of

limitation as contained in Article 136 of the Limitation Act.

Shri Kshirsagar, the learned counsel, has relied upon the

decision of the Apex Court in the case of Dr. Chiranji Lal (D)

by L.Rs vrs. Hari Das (D) by L.Rs, reported in (2005) 10

SCC 746, for the proposition that if a decree for partition and

separate possession is not engrossed on the stamp paper as

required by law, it becomes unenforceable and the

defendant Nos. 1 and 2 having failed to get the decree

passed in Special Civil Suit No. 145 of 1968 executed within

the period of 12 years, the suit in question filed on

17.04.1993 is barred by law of limitation.

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          7]               The   effect   of   failure   to   get   a   final   decree   for

partition and separate possession engrossed on the stamp

paper is that the decree becomes unenforceable and what

remains is the determination of share by a judgment

delivered in a suit for partition and separate possession.

Before expiry of period of 12 years as prescribed under

Article 138 of the Limitation Act, the undivided 3/10 th share in

the property was sold by defendant Nos.1 and 2 to the

plaintiffs by registered sale deed dated 29.10.1981. The

plaintiffs had issued notices dated 07.09.1982 and

07.09.1992, calling upon the defendants to get the share

demarcated. The suit in question was filed on 17.04.1993 for

partition and separate possession.

8] This case is not concerned with the execution of

a decree and therefore, the applicability of the provision of

Article 136 of the Limitation Act is excluded. It is the suit for

partition and separate possession. The limitation for filing the

suit may either be governed by Article 65 or Article 113 of

the Limitation Act, which prescribes period of 12 years or 3

years respectively, from the date of accrual of cause of

action. The plaintiffs have filed the suit on the basis of notices

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dated 07.09.1982 and 07.09.1992. Even if the period of

limitation is to be counted in the present case from

29.10.1981 i.e. the date on which the plaintiff became the

owner of the suit property, the suit filed on 17.04.1993 would

be within the period of limitation as prescribed under Article

65 of the Limitation Act. Normally, the cause of action for the

suit for partition and separate possession arises from the

date of receipt of demand for it. In the present case, it would

be from 07.09.1982 and the suit filed on 17.04.1983 shall be

within a period of 3 years in terms of Article 113 of the

Limitation Act. The lower appellate Court has, therefore,

committed an error in holding that the suit was barred by the

law of limitation. The substantial question of law framed by

this Court is answered accordingly.

9] Shri Kshirsagar, the learned counsel appearing

for respondent No. 5 submits that the lower appellate Court

has held that the plaintiffs have acquired right under the

decree passed in Special Civil Suit No. 145 of 1968 to get

their share separated. But, instead of getting the decree

executed, they have filed the suit for partition and separate

possession. Shri Kshirsagar submits that the plaintiffs have

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stepped into the shoes of defendant Nos. 1 and 2 and

therefore, the separate suit for partition and separate

possession was barred by principle of res judicata.

10] The question of res judicata is a mixed question

of law and fact and was required to be raised before the

Courts below. The trial Court has not framed any issue on

this aspect of the matter, though the lower appellate Court

has cursorily deal with this aspect of the matter in paragraph

18 of the judgment. I have already held that in the absence

of final and enforceable decree for partition and separate

possession, what remains is the determination of share in

the joint family property and the plaintiffs being subsequent

purchasers were entitled to file a suit for getting a decree for

partition and separate possession, which can be enforced in

accordance with law.

11] In view of above, the judgment and order

passed by the lower appellate Court on 22.07.2011 in

Regular Civil Appeal No. 450 of 2007 needs to be quashed

and set aside and the Regular Civil Suit No. 3585 of 2001

(Special Civil Suit No. 376 of 1993) filed by the plaintiffs is

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required to be decreed.

12] In the result, the second appeal is allowed and

the decree is passed as under;

The plaintiffs are held entitled to 3/10 th share in

the entire suit property mentioned in para 5 of the plaint.

The Commissioner shall be appointed under

Order XXVI Rules 13 and 14 of Civil Procedure Code for

effecting the partition by metes and bounds and to put the

parties in possession of their respective shares. No costs.

JUDGE

Rvjalit