Shalikram S/O Dhudhramji Ikhar ... vs Badal S/O Ramaji Thaware And ...
2021 Latest Caselaw 14662 Bom

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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              NAGPUR BENCH, NAGPUR

                                   Second Appeal No.206 of 2021

                   Shalikram s/o Dhudhramji Ikhar [Dead] through L.Rs.
                                           vs.
                              Badal Ramaji Thaware & others
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Office notes, Office Memoranda of
Coram, appearances, Court's orders                       Court's or Judge's Orders
or directions and Registrar's orders.
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              Shri K.K. Gour, Advocate for the Appellants.


                             CORAM            : S.M. MODAK, J.

DATE : 7th OCTOBER, 2021.

Heard the learned Advocate for the appellants/defendant Nos.6 & 7.

02] Defendant Nos.6 & 7 are the subsequent purchasers of the suit land. They purchased it from one Shalikram. Defendant Nos.1 to 5 are the legal representatives of said Shalikram. Said Shalikram had purchased the land by executing the sale-deed dated 28/04/1988 from one Shakuntalabai Ramaji Thaware. The present suit for declaring that the sale-deed as null and void, for possession and permanent injunction, was filed by present respondent Nos.1 & 2. The present appellants being subsequent purchasers and legal representatives of Shalikram (who was the first purchaser) have contested the suit.

03] After the evidence, the trial Court has held that the suit is barred by principle of res judicata and also held that the suit is not within the limitation (Internal Page No.5 i.e. Issue Nos.8 & 9). That is why the suit was dismissed. The original plaintiffs have preferred R.C.A. No.24/2016. It is strange that the first appellate Court, even

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though answered the point of bar of suit due to res judicata in the affirmative, was pleased to allow the appeal and decree the suit. The present appellants along with other defendants were directed to handover the possession. It is also interesting that when the possession is not with the plaintiffs, the first appellate Court even directed the defendants not to disturb the possession of the plaintiffs. This judgment is challenged by the subsequent purchasers-defendant Nos.6 & 7.

PREVIOUS LITIGATIONS

04] During marathon arguments (involving lot of details), the learned Advocate for the appellants has apprised me about in all five proceedings including one proceeding for grant of heirship certificate contested between the parties. They are-

(a) Succession Case No.8/1987;

(b) R.C.S. No.96/1989 (filed by Tarabai against the present plaintiffs, first purchaser-Shalikram and others for partition);

(c) R.C.S. No.96/1989 (in which all the probable heirs of Ramaji were the party);

(d) R.C.S. No.35/2003 (filed by Hirabai, in which there is a direct challenge to the sale-deed executed with Shalikram);

(e) R.C.S. No.40/1999 (filed by first purchaser-Shalikram about declaration as to his ownership) and

(f) R.C.A. No.83/2003 (filed by Santhoshibai and Badal i.e. the present plaintiffs against the first purchaser-Shalikram).

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              05]           From the decisions in above suits, first appeal and second
              appeal were preferred against some of the decisions.                        R.C.A.

No.83/2003 was preferred against the judgment in R.C.S. No.40/1999.

It was preferred by the first purchaser-Shalikram. Second Appeal No.604/2007 was also preferred by said Shalikram. Both were dismissed. It is true to say that some of the litigations were instituted by Hirabai, who claims to be the daughter of Ramaji from first wife Radhabai. She instituted two suits. The present plaintiffs have instituted R.C.S. No.83/2003 and the present suit bearing R.C.S. No.6/2010, whereas, the first purchaser instituted R.C.S. No.40/1999.

06] So, on the basis of these documents, the issue of principle of res judicata is bound to occur. It may occur in two contingencies. It may occur, when there is a finding on an issue in a previous litigation. It may also occur by way of constructive res judicata.

TRIAL COURT

07] The trial Court has framed the issue of res judicata for the reason that the present plaintiffs being party/defendants in a substantive suit for partition bearing R.C.S. No.96/1989 instituted by Hirabai. In that suit, the first purchaser-Shalikram was also one of the party. The trial Court held that the suit is barred by principle of res judicata. It is affirmed by the first appellate Court. It is but natural for the present appellants not to be aggrieved by the said finding. They are more aggrieved, because issue of limitation has been answered against them.

08] With the assistance of the learned Advocate for the appellants, I have read the averments about cause of action from the plaint. Second Appeal No.604/2007 was dismissed on 03/03/2008.

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This was preferred at the instance of the first purchaser-Shalikram against the judgment in R.C.A. No.83/2003 preferred against the judgment in R.C.S. No.40/1999. The plaintiffs have pleaded that cause of action arose on 03/03/2008. It has not weighed with the trial Court. The trial Court held that challenge to sale-deed ought to have been given within three years from the date of knowledge by the plaintiffs. That is why, the suit was held not within the limitation.

FIRST APPEAL

09] When the findings given by the first appellate Court on the point of plea of limitation are perused, we do not find any reason given by the first appellate Court disagreeing with the finding given by the trial Court while answering Point No.1. The first appellate Court held that the suit is within limitation (when period is computed from 03/03/2008 i.e. the date of dismissal of Second Appeal No.604/2007) So, there is every reason for this Court to make prima facie observation that those findings are erroneous. Hence, this Court is inclined to admit the appeal.

10] The appeal is admitted on the following substantial questions of law:

i. Whether the first appellate Court erred in holding the suit within limitation?

ii. Whether the first appellate Court erred in decreeing the suit in spite of the fact that the first appellate Court held that the principle of res judicata is applicable?

11] Issue notice to the respondents, returnable after 12 weeks.

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              12]           Call for record and proceedings of both the Courts below.


              Civil Application [CAS] No.633/2021:

Heard the learned Advocate for the applicants/ appellants.

02] This Court has admitted the appeal by framing substantial questions of law. The first appellate Court has directed the defendants including the present appellants to hand over the possession of suit land to the plaintiffs. If the possession is handed over, the purpose of filing this appeal will be frustrated.

03] Hence, interim relief is granted in terms of prayer clause (a). The appellants not to transfer the possession of the suit land or create third party interest over the suit land.

04] Issue notice to the respondents, making it returnable after 12 weeks.

JUDGE *sandesh