Sukhdeo Ginandeo Khadke vs Rambhau Dnyandeo Kawale And Anr
2021 Latest Caselaw 10105 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                        SECOND APPEAL NO.669 OF 2012

                       SUKHDEO GINANDEO KHADKE
                                  VERSUS
                  RAMBHAU DNYANDEO KAWALE AND ANR
                                     ...
             Advocate for Appellants : Mr. Deshmukh Sachin S.
             Advocate for Respondent No.1: Mr. R. T. Nagargoje.
                                 R/2 Dead
                                     ...

                                    CORAM :   SMT.VIBHA KANKANWADI, J.
                                    DATE :    02-08-2021.

ORDER :

1. The present appeal has been filed by the original plaintiff

challenging the concurrent Judgment and decree passed in Regular

Civil Appeal No.07 of 2001 by learned District Judge-1, Ambajogai

dated 16-12-2011 by which the appeal filed by the appellant

challenging the Judgment and decree passed by learned Joint Civil

Judge Junior Division, Parli-Vaijnath in Regular Civil Suit No.184 of

1998 dated 21-12-2000 came to be confirmed. By the said Judgment

and decree the learned Joint Civil Judge Junior Division, Parli Vaijnath

had dismissed the suit of the plaintiff.

2. Heard learned Advocate Mr. S. S. Deshmukh for appellant and

learned Advocate Mr. R. T. Nagargoje for respondent No.1.

2 SA 669-2012

3. It has been vehemently submitted that both the Courts below

failed to consider the facts and circumstances and the law involved

in the case. Both the Courts failed to consider that the nature of the

sale deed was Sham and bogus and was never acted for a period of

16 years that is since the date of its execution 15-10-1982. The

rights of the plaintiff were never taken away. The suit was filed for

declaration of nullity of the said sale deed and was for an injunction.

In order to prove that the said sale deed is Sham and bogus, the

plaintiff has led evidence. Plaintiff is the son of defendant No.2

whereas one late Karbhari who was the father of defendant No.2 had

sold out the property to defendant No.1 by executing said sale deed.

Karbhari expired but defendant No.1 had not got his name entered

to the Grampanchayat. It shows that the sale deed was never acted

upon. The suit property was the ancestral property and, therefore,

Karbhari could not have any right to sell out the property. This fact

has not been discussed properly by both the Courts. Substantial

questions of law are involved in the case.

4. Learned Advocate appearing for respondent No.1 supported

the reasons given by both the Courts below and submitted that no

substantial questions of law are arising in this case.

3 SA 669-2012

5. At the outset, it is to be noted that it has not come on record

that as to exactly when Karbhari expired. It appears that he never

challenged the sale deed during his lifetime. Thereafter, the

defendant No.2 had not challenged it. Age of defendant No.2 shown

in the suit is 80 years. He has not come with a case that he was not

aware about the said sale deed. Under such circumstance, both the

Courts below have correctly held that the plaintiff failed to prove

that he has any right in the suit property. When the sale deed was

executed on 15-10-1982 and the suit was filed on 15-10-1998, it

has been rightly held that the suit was barred by limitation in view of

Article 58 of the Indian Limitation Act. Both the Courts below have

given well reasoned order which is definitely depicting correct

appreciation of evidence as well as the legal points. No substantial

question of law is arising as contemplated under Section 100 of the

Civil Procedure Code requiring admission of the second appeal and,

therefore, the second appeal stands dismissed at the stage of

admission itself. No order as to costs.

(SMT. VIBHA KANKANWADI) JUDGE

vjg/-