Bombay High Court
Shivraj Bhagwantrao Deshmukh vs Vaijanathappa Bhujangappa Tamshette on 22 January, 2024
2024:BHC-AUG:1824
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 467 OF 2015
WITH CIVIL APPLICATION NO. 10288 OF 2017
WITH CIVIL APPLICATION NO. 11227 OF 2015
SHIVRAJ BHAGWANTRAO DESHMUKH
VERSUS
VAIJANATHAPPA BHUJANGAPPA TAMSHETTE
Mr. B. A. Darak, Advocate for the appellant
Mr. U. B. Bilolikar, Advocate for respondent Nos.1A to 1D.
CORAM : R. M. JOSHI, J.
DATE : 22nd JANUARY, 2024
P.C. :-
1. This appeal takes exception to the judgment and decree dated
28/07/2015 passed in RCA No. 11/2011 whereby the judgment and
decree passed by the Trial court in Spl. Civil Suit No. 7/2006 dismissing
the suit was confirmed.
2. Parties are referred to as plaintiff and defendant for sake of
convenience.
3. Certain facts are not in dispute in this case and hence on the basis
of judgments passed by the Trial Court as well First Appellate Court this
appeal can be decided by consent of both sides.
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4. Facts which led to filing of appeal can be narrated in nutshell as
under:
(i) The plaintiff filed suit for declaration that he is owner and
possessor of suit House bearing No. 3, plot No. 4 of suit property
situated at Dharmabad and cancellation of the sale deed No. 204 dated
08/02/1999 executed by the plaintiff in favour of the defendant as
nominal. He also sought injunction in respect of the suit property. It is
case of plaintiff that he was in need of Rs.1,25,000/- and hence he asked
for the said amount from defendant, who is his maternal uncle. It was
decided to execute nominal document and hence sale deed in question
was executed. On 29/03/1999, defendant agreed to reconvey suit
property on receiving Rs.1,25,000/- but avoided to execute document on
one or another pretext. Defendant denied contention of plaintiff and
claimed right title and interest in the suit property.
(ii) While framing of issues at Exhibit 30 amongst other issues, issue of
bar of limitation for filing of suit also came to be framed. Both sides,
without raising objection to the issues framed, went on with trial. Plaintiff
examined himself at Exhibit 37. Apart from other contentions he
admitted execution of sale deed dated 08/02/1999. He claimed that
there was oral agreement of reconveyance. He also claimed that
defendant executed document of acceptance of Rs.1,25,000/- from
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plaintiff and agreed to reconvey suit property after coming back to
Dharmabad. In cross-examination it is accepted that in original plaint
there was no pleading of document dated 29/03/1999 and receipt of
Rs.1,25,000/- by defendant for plaintiff etc. and it was added by
amendment in 2007. He further admitted that sale deed dated
08/02/1999 stands in name of defendant. There is no mention of the
said transaction being nominal in document itself. He also admits that in
1999 he was in dire need of money.
(iii) Plaintiff also examined Datta Raut at Exhibit 44. He deposed on the
line of case of plaintiff. In cross-examination however he agreed that
before or after execution of sale deed (Exhibit 91) there was no writing
executed between plaintiff and defendant. He further accepted that no
talk had taken place between plaintiff and defendant in his presence.
Similar is evidence of Bapurao Iranna (Exhibit 45) examined by plaintiff.
He admits to have made false statement in affidavit of evidence about
identifying signature of Shivraj Deshmukh. Other witnesses examined by
defendant are not relevant for decision of the case.
(iv) Learned Trial Court on the basis of evidence on record held that
plaintiff has failed to prove that sale deed (Exhibit 91) is a nominal
document and not transaction of sale. Even in respect of document dated
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29/03/1999 (Exhibit 95) after going through evidence of witness
including handwriting expert, has found evidence led by plaintiff in this
regard to be unreliable. Apart from this it is also recorded that in Deed
(Exhibit 98) there is no stipulation of term that defendant agreed to
reconvey suit property to plaintiff.
5. Plaintiff has come out to the specific case that sale deed was
executed on 08/02/1999 (Exhibit 91). It is his further contention that on
29/03/1999 another document was executed between the parties which
indicates the repayment of the loan taken by the plaintiff from
defendant. Admittedly this suit is filed on 21/04/2006. There cannot be
dispute with regard to the fact that to the present case Article 58 of the
Limitation Act gets attracted. The said provision reads thus:
Deception of suit Period of limitation Time from which period begins
to run
58. To obtain any other Three Years When the right to sue first
declaration accrues.
. It clearly shows that the time for a suit for a declaration under this
article shall start run from the date when such right accrues. In the
instant case plaintiff seeks declaration in respect of the registered sale
deed admittedly executed by him in favour of defendant on 08/12/1999.
He further claims that on 23/09/1999, another document is said to be
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executed by defendant acknowledging repayment of money and agreeing
to reconveyance of suit property. Thus, the right first accrued for plaintiff
to file suit was on 23/09/1999. The plaintiff has sought to take plea in
the present case about the cause of action for filing suit has arisen on
05/04/2006 when he approached to the defendant claiming the
execution of sale deed but defendant refused the same. This though
sought to be made out as cause of action for filing suit for declaration
but period of limitation has started ticking against him, on alleged
execution of agreement at 29/03/1999, as per case of plaintiff. Cause of
action when right to sue first accrued is relevant for determination of
period of limitation and not any other subsequent cause of action. Since
suit is admittedly filed on 21/04/2006, is certainly barred by limitation.
Findings recorded by both Courts on the issue need no interference.
6. Concurrent findings recorded by both Courts are in consonance
with the material evidence on record and having due regard to the plea
raised by parties. Thus, no perversity is found to cause any interference
therein. For want of involvement of substantial question of law, appeal
deserves to be dismissed and accordingly stand dismissed. Pending
applications, if any, stand disposed of.
(R. M. JOSHI, J.)
ssp
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