[Cites 3, Cited by 0]
Bombay High Court
Kailash Bhimraoji Shiyle And Others vs Ramdas Ramchandra Mundane And Others on 30 January, 2026
2026:BHC-NAG:1533
49. AO 52 of 2018.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
APPEAL AGAINST ORDER NO.52/2018
Kailash Bhimraoji Shiyle and others
...Versus...
Ramdas Ramchandra Mundane and others
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders or directions
and Registrar's orders
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Mr. Kailash Dodani, Advocate for appellants
Mr. J.J. Chandurkar, Advocate for respondent No.1
CORAM : ROHIT W. JOSHI, J.
DATE : 30/01/2026
1. Learned Advocates for the parties jointly state that
question of law, which arises for consideration in the present
appeal, may be framed and the same be decided forthwith,
since both are ready to address the Court on merits on the
substantial question of law that arises for consideration.
2. Learned Advocates for the parties state that
limited controversy arises in the appeal, which is crystallized
in the order dated 12/10/2018 and therefore, they were in a
position to visualize the substantial question of law that may
be framed in the appeal. Learned Advocate for the respondent
No.1 specifically states that fresh notice after framing
substantial question of law may not be issued having regard to
the nature of controversy involved in the appeal. The
substantial question of law is framed as under :-
Whether the learned first Appellate Court was
right in remanding the suit, in view of birth certificate of
plaintiff No.3 produced by the defendants/appellants
49. AO 52 of 2018.odt
before the learned first Appellate Court, which shows his
date of birth as 14/02/1980 ?
3. The present appeal arises out of a suit for
cancellation of sale-deed, partition and separate possession.
The appellants are original plaintiffs. Respondents are the
defendants. The suit filed by the plaintiffs being Regular Civil
Suit No.63/2005 was decreed by the learned Civil Judge,
Junior Division, Court No.3, Morshi vide judgment and decree
dated 07/01/2008. Two appeals came to be filed against the
said judgment and decree. The appeal preferred by the
defendant Nos.1 and 2 came to be registered as Regular Civil
Appeal No.39/2014 and that preferred by the defendant No.3
came to be registered as Regular Civil Appeal No.54/2008.
The said appeals came to be decided by common judgment
dated 16/08/2018 by the learned District Judge-5, Amravati.
4. The suit is filed on 10/08/2005. Age of plaintiff
No.3 is stated as 21 years in the cause-title. In the appeal, the
defendants filed birth certificate of plaintiff No.3 on record,
according to which, his date of birth is 14/02/1980. This
would imply that he has attained majority on 14/02/1998.
5. Learned first Appellate Court has remanded the
matter to the learned Trial Court to decide the suit afresh by
taking additional evidence limited to the birth certificate of the
plaintiff No.3. In the considered opinion of this Court, even if
the age of plaintiff No.3 is computed on the basis of the birth
certificate, which shows his date of birth as 14/02/1980, the
plaintiff No.3 attains majority on 14/02/1998. The suit is filed
on 10/08/2005. Limitation for setting aside alienation of
49. AO 52 of 2018.odt
ancestral property by father of a Hindu, governed by
Mitakshara Law, is prescribed under Article 109 of the
Limitation Act, 1963 as 12 years. Likewise, limitation for filing
suit for partition and separate possession is 12 years, as per
Article 110 of the Limitation Act. In that view of the matter,
even if, the date of birth of plaintiff No.3 is considered as
14/02/1980, the suit will be within limitation with respect of
plaintiff No.3.
6. In view of the aforesaid, order of remand will not
serve any fruitful purpose and will result in futile exercise.
7. In view of the above, Appeal Against Order is
allowed. Judgment and order dated 16/08/2018, passed by
the learned District Judge-5, Amravati in Regular Civil Appeal
Nos.39/2014 and 54/2008 is quashed and set aside. The
matter is remanded back to the learned first Appellate Court to
decide the said appeals on merits, in accordance with law.
8. The parties to appear before the learned first
Appellate Court on 04/03/2026. Parties to note that separate
notice for appearance will not be issued.
(ROHIT W. JOSHI, J.)
Wadkar
Signed by: S.S. Wadkar (SSW)
Designation: PS To Honourable Judge
Date: 30/01/2026 19:14:41
