Bombay High Court
Prabhakar S/O Ramchandra ... vs Ramchandra M. Dandekar (Since ... on 3 September, 2021
Bench: S. M. Modak
6.SA.163.2020. 1/4
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Second Appeal No.163/2020
Prabhakar s/o Ramchandra Dandekar Vs. Ramchandra s/o Mahadeorao Dandekar (dead) thr.
L.Rs. & Ors.
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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 Anup H. Lohiya, Advocate with Ms. Shilpa O. Tapdiya, Advocate for the Appellant.
Shri A.V. Khare, Advocate for Respondent No.3/Caveator.
CORAM : S.M. MODAK, J.
DATE : 3rd SEPTEMBER, 2021.
Today, I have heard the learned Advocate for the
appellant/original plaintiff and learned Advocate for respondent
No.3/original defendant No.3/Caveator.
02] The plaintiff's suit for partition, declaration of the decree
passed in Special Civil Suit No.869/1996 and for declaration of the
sale-deed executed by defendant No.1 in favour of defendant No.3 as
null and void was decreed by the trial Court. Plaintiff was held
entitled to 1/3rd share in the suit property. It consists of a land
admeasuring 11000 sq. ft. Whereas, the sale-deed pertains to 5500
sq. ft.
03] The defendant Nos.1 and 2 are the father and brother of
the plaintiff respectively. Though they have filed their written
statement, they have not given evidence. It was contested only by
defendant No.3. When the defendant No.3 filed first appeal, they
were successful and the suit was dismissed. That is how, the plaintiff
has come in this appeal.
6.SA.163.2020. 2/4
04] Number of contentions were raised by both the sides. The
entire crux of the matter is centered around, whether the defendant
No.1 has got right to sell 5500 sq. ft. of land. The plaintiff claims that
in oral partition in between he and defendant Nos.1 and 2, this land
is allotted to him. Whereas defendant No.1-father has pleaded that
during the partition on 1962, this land came to his share.
05] According to the plaintiff, the sale-deed in question
cannot be termed as a sale-deed. He raised number of contentions
which includes not handing over the possession, not certifying the
payment of remaining consideration of Rs.61,000/- by the Sub-
Registrar and a clause in the sale-deed which says refund of only
Rs.5,000/- in case of eventuality mentioned therein. It is also the
submission of the appellant that suit for specific performance bearing
Regular Civil Suit No.568/2002 filed by the Society against the father
and two sons came to be dismissed, so also the first and second
appeal. There is a finding in those proceedings about the nature of
the suit property being ancestral property.
06] There is also contention on behalf of the learned
Advocate Shri Lohiya that the first Appellate Court has held the suit
barred by law of limitation and it is on the basis of the
correspondence made by him with the Corporation in the year 1991.
According to him, those correspondence nowhere say about
knowledge of the plaintiff about the sale-deed. Whereas, according to
learned Advocate for defendant No.3, this issue was rightly decided
by the first Appellate Court against the plaintiff on the basis of oral
and documentary evidence. Whereas, learned Advocate Shri Lohiya
relied upon the provisions of Article 109 of the Limitation Act.
6.SA.163.2020. 3/4
07] On the other hand, learned Advocate for defendant No.3
invited my attention to some of the averments in the plaint, which
describe how the plaintiff got this property. He got it along with the
father and brother after the death of his grandfather. According to
him, if this statement is to be believed, the plaintiff will not get right
during the lifetime of his father. According to him, the grandson is not
incorporated in Class-I to the schedule attached to the Hindu
Succession Act. He also relied upon some of the judgments.
• Bhanwar Singh Vs. Puran & Others reported in (2008) AIR(SC)
1490.
• Commissioner of Wealth Tax, Kanpur & Others Vs. Chander Sen
& Others reported in (1986) AIR(SC) 1753.
• Uttam Vs. Saubhag Singh & Ors. reported in (2016) 4 SCC 68.
08] There is also a contention on behalf of the appellant that
when the first appeal was pending, liquidator was appointed for
defendant No.3 and it was not informed to the court seized of the
matter. Whereas, learned Advocate for defendant No.3, Liquidator
was appointed behind their back and the order is also set aside.
09] Considering all above submissions, I think, furthermore
hearing will be required in order to decide, whether substantial
questions of law are involved or not? Hence, the matter be kept on
15th September, 2021 at serial No.1.
Civil Application (CAS) No.484/2020
10] There is a request to stay the execution of the decree
passed by the first Appellate Court. Learned Advocate for the
appellant submitted that if the decree of first Appellate Court is
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stayed, naturally the decree passed by the trial Court will revive.
Whereas, according to learned Advocate for respondent No.3, there is
no question of execution of the decree of first Appellate Court.
11] It is brought to my notice that Maharashtra Metro Rail
Corporation Limited has issued a notice to the present appellant
thereby calling his explanation why the amount of compensation be
not paid to respondent No.3 - Society. There is an apprehension that
if the amount is disbursed, it is unlikely that the amount will be re-
deposited on behalf of the Society. When Court is in the process of
hearing, I think it will be proper if respondent No.3 is restrained from
withdrawing the compensation from the Maharashtra Metro Rail
Corporation Limited at least for one month.
12] Hence, respondent No.3 is directed not to withdraw the
compensation for one month from today. They may inform to the
Corporation about this order, so also the appellant may inform.
Respondent No.3 is directed not to create third party interest in the
suit land for one month.
13] Matter be kept on 15th September, 2021 at serial No.1.
JUDGE
vijay
