Bombay High Court

Devakabai Walmik Patil vs Shaikh Sayam Shaikh Gulab Lrs ... on 17 March, 2021

Bench: Anil S. Kilor

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD


                     SECOND APPEAL NO. 502 OF 2018
                    WITH CA/8245/2018 IN SA/502/2018

Smt. Devakabai w/o. Walmik Patil,
Age 59 years, Occu. Labour,
R/o. Jargaon, Taluka Pachora,
District Jalgaon                             ..      Appellant

                 Versus

1.      Shaikh Sayam Shaikh Gulab,
        (Deceased through his legal heirs)

1.1     Saidabi Sk. Sayam,
        Age 55 years, Occu. Labour,

1.2     Shamimbi Sk. Rasid,
        Age 35 years, Occu. Labour,
        R/o. Aamkheda, Taluka Soygaon,
        Distrit Aurangabad.

1.3     Nasibbi Sk. Jafar,
        Age 33 years, Occu. Labour,
        R/o. Mariya Manjil, Shahunagar,
        Jalgaon.

1.4     Pravinbi Sk. Shakik,
        Age 31 years, Occu. Labour,
        R/o. Ambedkar Chowk,
        At Post Taluka and District Aurangabad.

1.5     Sherbanobi Sk. Musa,
        Age 28 years, Occu. Labour,
        R/o. Ambedkar Chowk,
        At Post Taluka and District Aurangabad.

1.6     Sk. Salim Sk. Sayam,
        Age 25 years, Occu. Labour,

1.7     Sk. Kalim Sk. Sayam,
        Age 23 years, Occu. Labour,
        R/o. Vallabhbhai, Taluka Pachora,
        At Post Pachora, Taluka Pachora,
        District Jalgaon.



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2.      Shaikh Chand Shaikh Gulab,
        (Deceased through his legal heirs)

2.1     Umrabee w/o. Shaikh Chand
        Age 75 years, Occu. Nil,

2.2     Shaikh Hasan Shaikh Chand
        Age 40 years, Occu. Nil,

2.3     Sayarabee w/o. Atik
        Age 38 years, Occu. Household work,

2.4     Mairajbee w/o. Hanief,
        Age 38 years, Occu. Household work,

        Nos. 21 to 24 all R/o. Pachora,
        Taluka Pachora, District Jalgaon.

2.5     Shainajbee w/o. Rashid,
        Age 37 years, Occu. Labour,
        R/o. Chopda, Taluka Chopda,
        District Jalgaon.

2.6     Tayarabee w/o. Shaikh Harun,
        Age 35 years, Occu. Household work,
        R/o. Banoti, Taluka Soygaon,
        District Aurangabad.

2.7     Rahena d/o. Shaikh Chand,
        Age 30 years, Occu. Household work,

3.      Shaikh Mahebub Shaikh Gulab,
        Age 67 years, Occu. Labour,

4.      Shaikh Shabbir Shaikh Gulab,
        Age 63 years, Occu. Labour,

5.      Shaikh Kalandar Shaikh Ahmad,
        Age 65 years, Occu. Labour,

6.      Shaikh Mustan Shaikh Ahmad,
        Age 63 years, Occu. Labour,

7.      Shaikh Babu Shaikh Ahmad,
        Age 65 years, Occu. Labour,

8.      Shaikh Yunus Shaikh Ahmad,
        Age 61 years, Occu. Labour,



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9.      Shaikh Yusuf Shaikh Ahmad,
        Age 60 years, Occu. Labour,

10.     Shaikh Sadik Shaikh Ahmad,
        Age 59 years, Occu. Labour,

11.     Shaikh Ranuf Shaikh Ahmad,
        Age 58 years, Occu. Labour,

12.     Saidabee w/o. Salim,
        Age 57 years, Occu. Household work,

13.     Munnabee w/o. Shaikh Ahmad,
        (Deceased)
        Nos. 3 to 13 all R/o. Pachora,
        Taluka Pachora, District Jalgaon.

14.     Rahimatbee w/o. Shaikh Gulab
        (Deceased)

15.     Sugarabee w/o. Mahamad Yusuf,
        Age 68 years, Occu. Labourer,
        R/o. Goradkheda, Taluka Pachora,
        District Jalgaon,
        At present R/o. Malad, Chincholi,
        Bandar Road, Bhagwati Chall,
        Malad (West) No. 64.                                   ..      Respondents

                                 ...
Mr. Devdatt P. Palodkar, Advocate for appellant
Mr. B. R. Waramaa, Advocate for respondents No.1 to 12
                                 ...

                                      CORAM :          ANIL S. KILOR, J.

                                      DATE         :   17th MARCH, 2021

PER COURT :-


                 This     is   an   appeal       preferred    by     defendant          No.1

challenging the Judgment and order dated 22-01-2018 passed by

learned District Judge-2, Jalgaon, in Regular Civil Appeal No. 68 of

2011, reversing the Judgment and Decree dated 01-03-2011 passed

4 907-SA-502-18.odt

by Civil Judge, Junior Division, Jalgaon, in Regular Civil Suit No. 110

of 2001, whereby suit for declaration, possession and mesne proft

has been dismissed. The lower appellate court, while allowing the

appeal preferred by the plaintifs, reverse the Judgment and Decree

of the learned trial Court.

2. The brief facts of the present appeal are as follows ( The

parties have referred as per their status in the suit) :-

The plaintifs and the defendants No. 2 and 3 are the

legal heirs of deceased Shaikh Gulab. Defendant No. 2 is the

widow, whereas, defendant No. 3 is the daughter of deceased

Shaikh Gulab. The plaintifs are sons, sisters and legal heirs of a

predeceased son Shaikh Chand. Defendant No. 1 is the purchaser

of land Gat No. 70 area admeasuring 1 H. 40 R situated at village

Chinchkheda Khurd, Taluka Pachora, District Jalgaon.

It is the case of the plaintifs that the suit property was

owned and possessed by Shaikh Gulab, who expired on 21-07-1962

leaving behind the plaintifs and defendants No. 2 and 3 as legal

heirs. The plaintifs and defendants No. 2 and 3 belong to Hanaphi

Sunni Sect of Muslim Religion, therefore, all of them become the

owners of the suit property by way of succession.

However, the mother of plaintif No.1 and defendant

No. 2, on 22nd January, 1986, executed a registered sale deed in

respect of suit property in favour defendant No. 3, and thereafter,

5 907-SA-502-18.odt

conditional sale deed had executed on 26-03-1991 by defendant

No. 3 in favour of defendant No.1. Subsequently, on 31-03-1992,

the defendant No. 2 executed the sale deed in favour of the

defendant No.1, and accordingly, the suit was fled vide Regular

Civil Suit No. (Old) 234 of 1996 and (New) 110 of 2001, for

declaration, possession and mesne proft. The said suit was

dismissed vide Judgment and Decree dated 01-03-2011. The

plaintifs feeling aggrieved by the said Judgment and Decree

preferred an appeal which was registered as Regular Civil Appeal

No. 68 of 2011 and the same was allowed by the learned Appellate

Court vide impugned Judgment and Decree, dated 22-01-2018. The

same is assailed in the present appeal.

3. I have heard respective learned counsels for the parties.

4. Mr. Palodkar, learned counsel for the appellant submits

that the trial Court has rightly dismissed the suit considering the

suit as time barred in view of the fact that the suit was fled for

declaration in the year 1996 as regards sale deed of the year 1991-

92, whereas, limitation for seeking declaration is three years.

It is submitted that the learned lower appellate court

wrongly applied Article 65 of the Limitation Act, 1963 to the facts of

present case and hold that the limitation is 12 years from the date

of possession of the defendant becomes adverse to the plaintif.

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.                Mr. Palodkar, learned counsel for the appellant further

states that even if it is hold that the suit was within limitation, the

decree passed by lower appellate court is not sustainable and the

same is erroneous on the sole ground that the learned lower

appellate court has directed to hand over the complete land,

whereas, prayer before the trial Court made by the plaintifs was for

possession of their respective shares and not the complete land.

5. Mr. Waramaa, learned counsel appearing for

respondents supports impugned Judgment and Decree dated 22-01-

2018 and submits that no substantial question of law is involved in

the present appeal, and therefore, the same needs to be dismissed.

6. To consider the rival contentions of parties, I have gone

through the record and proceeding including relevant documents

and Judgment of both the Courts below.

7. There is no dispute that in the suit fled by plaintifs, frst

prayer was in respect of declaration to the efect that the sale

deeds dated 26-03-1991 and 31-01-1992 are void. Second prayer

was in respect of possession of respective share of the plaintifs.

8. It is a settled law that when the possession of the

defendant becomes adverse to the plaintif, the plaintif can

maintain a suit fled within twelve years as per Article 65 of the

Limitation Act, 1963.

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9. In the present matter, though, the frst prayer clause in

respect of declaration, however, the suit is for possession of

respective share for which the plaintifs are entitled for after the

death of Shaikh Gulab.

10. The learned lower appellate court has rightly considered

the law in respect of limitation in such matter and applied Article 65

of the Limitation Act, 1963. I do not fnd any error in the fndings

recorded by the learned appellate court while arriving at the

conclusion that in the present matter limitation would be 12 years

from the date the possession of the defendant becomes adverse to

the plaintifs. In the circumstances, the frst contention of the

appellant is rejected.

11. As regards to the second contention that even if suit is

held to be within limitation, the plaintifs are not entitled for

possession of complete land, but, at the most they are entitled their

respective shares is concerned, I fnd substance in the arguments

advanced on behalf of learned counsel for appellant. The learned

counsel for the respondents-plaintifs also fairly states that looking

to the prayer made in the plaint, the plaintifs are also not claiming

possession of the land more than their respective shares.

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12. In the above referred backdrop, the learned counsel for

the respondents-plaintifs fled pursis showing the shares and

entitlement of the parties which has not disputed by the appellant.

In that view of the matter, the appeal is partly allowed and it is held

that the parties are entitled for their respective shares as given in

chart below :-

CHART Nos. Legal heirs of deceased Shaikh Gulab Share 1 Widow (Defendant No. 2) 1/8 2 Daughter (Defendant No. 3) 7/88

3 Sons -

              Shaikh Ahmad                                          14/88
              Shaikh Chand (Plaintif No.2)                          14/88
              Shaikh Mahebub (Plaintif No.3)                        14/88
              Shaikh Sayam (Plaintif No.1)                          14/88
              Shaikh Shabbir (Plaintif No.4)                        14/88