Bombay High Court
Shankar Bhau Chavare vs Annappa Balu Naikwadi, ... on 30 March, 2021
Bench: S. K. Shinde
10-SA-717-2017.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.717 OF 2017
Shankar Bhau Chavare ... Appellant
Vs
Annappa Balu Naikwadi
(Deceased) Through LRS ... Respondents
...
Mr. Chetan G. Patil for the Appellant.
Mr. Vishwanath B. Rajure for the Respondents.
CORAM : SANDEEP K. SHINDE J.
DATE : 30th MARCH, 2021.
P.C. :
Heard.
2 Shankar, appellant/plaintif, instituted Regular
Civil Suit No.38 of 2011 for declaration of title and
possession of the suit property. It was a suit on title. The
plaintif had purchased undivided share of vendor-Mayappa
(Suit Property) vide registered sale deed dated 7 th August,
1985. Mayyappa and Annappa, were members of a joint
family. Whereafter Annappa Balu Naikwadi, nephew of
Shivgan 1/4
10-SA-717-2017.odt
Mayappa had fled Regular Civil Suit No.70 of 1992 for
perpetual injunction against the appellant Shankar Chavare
to restrain him from disturbing his possession in joint family
property. The suit was dismissed. However, in Regular Civil
Appeal No.295 of 2002, the learned III Ad-hoc Additional
District Judge, Kolhapur vide decree dated 18th February,
2005 restrained the Shankar, from causing obstruction to
the possession of Annappa (Plaintif therein) over the suit
land. However, in paragraph 12 of the judgment, the
Appellate Court had observed thus ;
"If really Mayappa had executed sale deed in favour
of the defendant (Shankar Chavare), appellant
herein), the remedy is available to the defendant to
claim his share in the suit feld..
3 Whereafter, Shankar instituted subject suit in
2011. The suit was decreed whereby Shankar was declared
as owner of ½ share in Gat No.886/2 on the basis of sale
deed dated 7th August, 1985 executed in his favour by
Mayappa.
Shivgan 2/4
10-SA-717-2017.odt
4 Facts of the case show, power of attorney of
Mayappa had sold very property of Annappa in 1991.
5 Be that as it may, subject suit was instituted by
the appellant on 2nd March, 2011 on title, in view of the
liberty granted by the Appellate Court on 18 th February,
2005, as re-produced hereinabove. Admittedly, Shankar had
purchased undivided share of Mayyappa in joint family
property. He instituted the suit for declaration, partition
and possession. The learned Appellate Court, dismissed the
suit only on the ground that it was fled beyond limitation.
6 In consideration of the facts of the case, appeal
gives rise to following substantial questions of law:
"(i) That whether the learned Lower Appellate Court
is justifed in holding that the Suit fled by the
Appellant is barred by limitation, when in fact that
the Suit was fled by the Appellant well within the
period of limitation ?
Shivgan 3/4
10-SA-717-2017.odt
(ii) That the learned Lower Appellate Court
ought to have seen that it is settled by a catena of
judgments of the Hon'ble Apex Court as also of this
Court that when the suit is fled for title and a
consequential relief for possessing is sought, the said
Suit would be governed by Article 65 of the Indian
Limitation Act, 1963 and hence the suit fled by the
appellant was well within the period of limitation as
per the provision of Article 65 of the Indian Limitation
Act, 1963 ?
(iii) That whether the learned Lower Appellate
Court is justifed in holding that the Respondents
herein have established that they are possessing the
suit property adverse to the title of the appellant
continuous for more than 12 years when the said
proposition is neither pleaded nor proved by the
Respondents herein ? "
7 The Second Appeal is admitted.
8 Call records and proceedings from the Trial
Court.
9 Pending appeal, the appellant shall not
create third party right in the suit property
(SANDEEP K. SHINDE, J.)
Shivgan 4/4
