Sanjay S/O Balaram Karemore vs Smt. Kamal W/O Wasudeo Gaykwad And ...
2021 Latest Caselaw 14926 Bom

Order                                                                                    1 sa 201-2021
                                                   1

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

                          CIVIL APPLICATION (CAS) NO.624/2021
                                           IN
                              SECOND APPEAL NO.201/2021
                                  Sanjay s/o Balaram Karemore
                                               Vs.
                          Smt. Kamal w/o Wasudev Gaykwad and another.
Office notes, Office Memoranda of
Coram, appearances, Court's orders                         Court's or Judge's Orders
or directions and Registrar's orders.

                                         Shri H.G. Katekar, Advocate for appellant

                                         CORAM : S.M. MODAK, J.

DATE : OCTOBER 12, 2021.

Heard learned Advocate for the appellant/original defendant no.2. He wants to challenge the judgment given by the First Appellate Court in Regular Civil Appeal No.108/2017. By the said judgment, the decree passed by the Trial Court is confirmed.

2. That decree is passed in preemption suit filed by the present respondent no.1. She claims to be the sister of present respondent no.2. Present respondent no.2 Mrs. Kunda Gaykwad has entered into an agreement with defendant no.2/present appellant for sale of her share in the suit property. Plaintiff Mrs. Kunda Gaykwad made a grievance that said agreement was executed without her consent and that is why, by way of the suit, she wants to exercise her right of preferential purchase on the basis of right of preemption.

Order 1 sa 201-2021

3. In fact, the purchaser/defendant no.2 has filed a suit for specific performance bearing Regular Civil Suit No.68/2009 against his purchaser/ defendant no.1 that was decreed, so also Regular Civil Appeal No.96/2012 filed against that judgment was also dismissed. The details find place in paragraph no.14 of the Trial Court's judgment.

4. The main focus of the argument of present appellant is that both the Courts below have not properly appreciated the facts in relation to the period prescribed for filing such suit. Article 97 of the Limitation Act prescribes the period of one year. The Trial Court observed that the suit has been filed within the period of one year from the date of knowledge (possession is not handed over) that is how the suit has been held within limitation. Whereas the First Appellate Court also confirmed the findings, but on the basis of different reasons. According to the First Appellate Court, Article 137 of the Limitation Act will be applicable. It prescribes the period of three years. These findings are challenged.

5. Learned Advocate for the appellant seeks time to file on record the judgment passed by the Trial Court as well as by the First Appellate Court in his specific performance suit.

6. Matter be kept in the week starting from 25/10/2021.

JUDGE R.S. Sahare