Bombay High Court
Rashmikumar S/O Prabhudas Khisty vs Vasant S/O Sadashiv Nimikar (Now ... on 6 August, 2021
Bench: S. M. Modak
Order 2 sa 141-2019
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.141/2019
Rashmikumar s/o Prabhudas Khisty, Vs. Vasant s/o Sadashiv Nimkar (dead) through
LR's Smt. Vatchala wd/o Vasant Nimkar and others.
WITH
SECOND APPEAL NO.380/2019
Rashmikumar s/o Prabhudas Khisty, Vs. Vasant s/o Sadashiv Nimkar (dead) through
LR's Smt. Vatchala wd/o Vasant Nimkar and others.
Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
Shri P.P. Kothari, Advocate for appellant.
Shri A.A. Dhawas, Advocate for respondents.
CORAM : S.M. MODAK, J.
DATE : AUGUST 06, 2021.
Heard learned Advocate for the appellants
and learned Advocate for respondents.
2. Before the Trial Court, there were two suits.
RCS No.291/2007 is filed by present appellant
Rashmikumar Khisty whereas RCS No.80/2008 is filed
by present respondent Vasant Nimkar. The suit filed by
Rashmikumar was for injuncting Vasant from
disturbing possession. Whereas suit filed by Vasant is
for declaration that sale-deed executed with
Rashmikumar Khisty on 03/08/1987 is not binding
him. Both the parties have adduced evidence before
the Trial Court.
3. The sale-deed in favour of Rashmikumar
Khisty is dated 03/08/1987 whereas the sale-deed in
Order 2 sa 141-2019
favour of Vasant is dated 19/08/1989. It is pertinent to
note that both of them have purchased the same land
from one Kanhoba Khutemate. Both the parties have
claimed to be in possession of suit land. After
evidence, Trial Court dismissed the suit of Vasant,
hence, he filed First Appeal No.221/2011. Whereas
suit of Rashmikumar was decreed. Due to this Vasant
filed First Appeal No.222/2021 before the First
Appellate Court and he succeeded in both the appeals .
The First Appellate Court declared the sale-
deed dated 03/08/1987 as not binding on Vasant
whereas the suit of Rashmikumar was dismissed.
These two Second Appeals are filed by Rashmikumar.
Second Appeal No. 141/2019 is preferred against the
judgment thereby reversing the decree for declaration
of sale-deed in question as not binding. Whereas
Second Appeal No. 380/2019 is preferred against the
decree thereby granting permanent injunction against
Vasant. Learned advocate for the appellants agreed
that there are so many defects in the memo of appeal.
After hearing them and after perusing the record,
following substantial questions of law are framed:
IN SECOND APPEAL NO.380/2019
i) Whether the First Appellate Court erred in
holding that it is the plaintiff who is in
possession of the suit land?
Order 2 sa 141-2019
ii) Whether the First Appellate Court was
right in answering the issue of limitation
against Rashmikumar by considering the
date of execution of sale-deed 03/08/1987
as the starting point?
IN SECOND APPEAL NO.141/2019
Whether the First Appellate Court was right
in accepting the Taba Pavati as an agreement
for sale executed by Kanhoba Khutemate in
favour of Vasant?
4. It is submitted that one more substantial
question of law pertaining to "competency of
Khutemate to sale the suit land to Vasant" be also
framed. In the judgment of the Trial Court, as well as
First Appellate Court, common issues were framed.
5. My attention is brought to an order dated
18/11/2010 passed below Exhibit-1 by the Trial Court.
It mentions about framing of common issues even
though earlier separate issues were framed in both the
suits. The request can be considered on pointing out
the actual separate issues framed in both the suits.
6. ADMIT both the second appeals.
7. Call for the record and proceedings.
JUDGE
R.S. Sahare
