Bombay High Court
Abdul Hameed S/O Abdul Kalam vs Abdul Aleem Khan S/O Abdul Kalam ... on 4 October, 2021
Bench: S. M. Modak
Order 10 sa 64-2020
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.64/2020
Abdul Hameed s/o Abdul Kalam
Vs.
Abdul Aleem Khan s/o Abdul Kalam Khan.
Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
Shri S.S. Bhalerao, Advocate for appellant.
Shri S. Raisuddin, Advocate for respondent.
CORAM : S.M. MODAK, J.
DATE : OCTOBER 04, 2021.
CIVIL APPLICATION NO.603/2021
Today it is submitted on behalf of the respondent
that he does not want to file reply. In the memo of appeal, the
substantial question on the point of limitation was not
proposed. The appellant is permitted to argue that question in
second appeal. This will be also a substantial question of law.
So the application is allowed. Still the appellant has to satisfy
that substantial question of law needs to be framed on the
point of limitation. Respondent is at liberty to oppose the
same.
Civil application is disposed of.
SECOND APPEAL NO. 64/2020
Farad sheet dated 26/08/2021 says that
inadvertently stay writ was not issued. Office to issue the stay
writ. In future, care should be taken.
Order 10 sa 64-2020
2. Heard both the learned Advocates. The present
plaintiff Abdul Aleem Khan has filed the suit for possession
bearing Regular Civil Suit No.720/2011. It was filed on the
premise that he is a tenant and defendant Abdul Hameed is a
trespasser. During the pendency of the suit, the plaintiff has
purchased the property from the landlord by executing a sale-
deed on 07/12/2013. The plaint was amended. The
defendant filed written statement thereby opposing the
original cause of action and also the ownership of the
plaintiff.
3. The Trial Court as well as the First Appellate Court
have framed issues/points. After reading them, one may find
that one of the issues pertains to a proof of title by the
plaintiff. Whereas the other issue pertains to pleadings of the
plaintiff prior to the execution of the sale-deed. It says about
proof of defendant being in wrongful possession of the
property.
4. It seems that the issue of ownership of the plaintiff
was answered in the affirmative by both the Courts below on
the basis that the sale-deed is executed. Whereas all other
issues framed on the basis of pleadings prior to execution of
sale-deed were also answered in favour of the plaintiff.
5. Learned Advocate for the defendant pointed out to
me the findings given by the Trial Court in respect of RCS
No.4528/2002. It was filed by one Raziya Begum who is
sister of both the plaintiff and defendant. She filed a suit for
declaration that Shop Act License was changed by defendant
Order 10 sa 64-2020
fraudulently. The present defendant contested the suit. He
claimed to be in possession since 1990. He has claimed that
the business was started by their father and after the plaintiff
has shifted out of Nagpur for job, defendant is doing the
business in the said shop. Whereas the present plaintiff has
pleaded that after he went out of Nagpur, his sister Raziya
Begam was looking after the business and in fact, the present
defendant dispossessed her in the year 2000.
6. It is true that the suit filed by Raziya Begum was
dismissed and parties are not coming with the case that that
judgment is challenged. According to the learned Advocate
for the defendant-appellant, both the Courts below have not
dealt with the issue of limitation. He relied upon one
judgment in case of State of Gujarat Vs. Kothari and
Associates reported in (2016) 14 Supreme Court Cases 761.
He has submitted that as per Article 64 of the Limitation Act,
if the plaintiff has pleaded that dispossession took place in the
year 2000, from that period of 12 years has to be computed.
Learned Advocate for the appellant fairly admitted that from
2000, suit has been filed within 12 years. He also submitted
that in fact the period of limitation will start from the
averments in the written statement filed in the present suit.
My attention is invited to the averments in paragraph no.2 of
that written statement. The defendant has pleaded that Civil
Court in earlier suit RCS No.4528/2002 has confirmed the
possession of the defendant over the suit premises since
1994. So according to him, the period will start from 1994
and not 2000.
Order 10 sa 64-2020
7. Learned Advocate for the respondent-plaintiff
relied upon a judgment in case of Kusuma Vs. Dilip reported
in 2021 (5) Mh.L.J. page 137. This Court (at Goa) was
pleased not to allow belated plea of limitation taken for the
first time in second appeal. It was neither raised earlier and
there were no pleadings. My attention is also brought to a
substantial question of law framed in that appeal. It was
framed on the basis of law of limitation only.
8. It is true that the Hon'ble Supreme Court in case of
State of Gujarat Vs. Kothari and Associates as referred above,
has observed that in fact duty is cast on the Court to consider
issue of limitation even on its own initiative and since the
Court failed to do so, the appellant's side was competent to
raise this legal question in appeal and indeed even in any
successive appeal.
9. The law laid down by the Hon'ble Supreme Court
is certainly binding on us. The observations made in Kusuma
Vs. Dilip (supra) case are on the basis of that case. Hence, I
am inclined to frame substantial question of law on the point
of limitation. And even in this case substantial question of law
was framed on the point of limitation.
10. As observed by Hon'ble Supreme Court in
paragraph no.8, learned Advocate for the appellant submitted
that even if this question is framed, the appellant does not
want to adduce any more evidence. It is true that this Court
has already framed one substantial question of law on
05/02/2021. It is in respect of the proof of ownership by the
Order 10 sa 64-2020
plaintiff. In addition to that following substantial question of
law is framed:
"Whether the suit filed by the plaintiff-respondent
was filed in time considering the averments in the
written statement to the effect that defendant
claimed to be in possession of the suit property
since 1994?"
11. The appeal be admitted. Record and proceedings
from both the courts below be called.
Appellant to file private paper book within the
period of one year from today.
CIVIL APPLICATION (CAS) NO.15/2020
Already this Court has granted interim relief in
terms of prayer Clause- (c) on 05/02/2021 till returnable
date. It was not extended thereafter. The appellant-defendant
is in possession of the suit property. The respondent-plaintiff
is deprived of getting fruits of the decree if the decree is
stayed. Both the parties are directed to address the Court on
the point of conditions to be imposed if at all the decree is to
be stayed hereinafter. Both the parties may consider the
principles laid down by the Hon'ble Supreme Court in case of
Atmaram Properties (P) Ltd. Vs. Federal Motors (P) Ltd.
reported in (2005)1 SCC 705.
Matter be kept after two weeks.
JUDGE
R.S. Sahare
