Kondiba and Machindra vs Shri Dashrath and Others

A.B. Chaudhari, J.—Heard Mr. Deshmukh, learned counsel for the appellants. Mr. Deshmukh, strenuously contended that Lower Appellate Court committed an error in reversing the decree of the trial court and partly decreeing the suit to the extent of declaration in the absence of any prayer. According to him, the suit was clearly barred by limitation in relation to the sale deeds of the year 1973 and 1983 and the mutations in favour of the vendor of the appellants were carried in the year 1970 which were never challenged. He fairly stated that this issue about limitation was not framed by the Trial Court nor was argued before the Courts below. However, the same can be urged before this court since it is a pure question of law. He relied on the decision of learned Single Judge of this Court in case of Nagorao Narayan Diewane Since deceased through heirs Vs. Narayan Awadutrao Dighe Since deceased through heirs, . He then argued that the Lower Appellate Court has given no importance to the revenue record or mutation entries which were never challenged and thus according to him, the same constitutes a substantial question of law. Per contra, Mr. Kolpe learned counsel for respondents supported the impugned judgment rendered by Lower Appellate Court and argued that there is no instrument to show how the estate of Bhima went to either Appa or his wife Mathura. Since Bhima died intestate, his estate must be distributed in accordance with succession provided by law and that is why there is no need to challenge the sale deeds in favour of the appellants. He then argued that, at any rate the sale deed to the extent of share of Mathura has been protected. He therefore, submitted that the Lower Appellate Court has correctly decreed the suit in part.

I have heard learned counsel for the rival parties. Perused impugned judgment recorded by the Lower Appellate Court. As to the aspect of limitation, it is an admitted fact that said issue was not at all raised before the trial court or First Appellate Court, and it is being raised for the first time by Mr. Deshmukh in this Second Appeal. There is a decision of the (4 Judges) of the Supreme Court in case of Banarsi Das Vs. Seth Kanshi Ram and Others, herein in paragraph No. 15 observed thus:-

The High Court has overlooked the fact that even upon the argument addressed before it on behalf of Kanshi Ram, the question of limitation was not one purely of law but was a mixed question of fact and law and, therefore, it was not proper for it to be raised for the first time in argument. We are satisfied that what the High Court has done has caused prejudice to some of the parties to the suit and on that ground alone, we would be justified in setting aside its decision. If the High Court felt overwhelmed by the provisions of S.3 of the Limitation Act, it should at least have given an opportunity to the parties which supported the decree of the trial Court to meet the plea of limitation by amending their pleadings. After allowing the pleadings to be amended, the High Court should have framed as issue and remitted it for a finding to the trial Court. Instead of doing so, it has chosen to treat the pleadings of one of the defendants as conclusive not only on the question of fact but also on the question of law and dismissed the suit. It is quite possible that had an opportunity been given to the defendants they could have established, in addition to proving the dates on which the summonses were served, that the suit was not barred by time because of acknowledgments. In the course of the discussion, the High Court has said that it was not suggested before it anyone that the claim was not barred by reason of acknowledgments. Apparently, no such argument was advanced before it on behalf of the plaintiff and the defendant Banarasi Das because the counsel were apparently taken by surprise and had no opportunity to obtain instructions on this aspect of the case. We are clearly of opinion that the High Court was in error in allowing the plea of limitation to be raised before it particularly by defendants who had not even filed a written statement in the case. We do not think that this was a fit case for permitting an entirely new point to be raised by a non-contesting party to the suit.

Thus, the submission based on limitation, which is raised by Mr. Deshmukh, learned counsel for appellants before this Court will have to be answered against the appellants.

Next question is about succession. Admittedly, Bhima died intestate and therefore, his estate or property ought to be distributed in accordance with provisions of Hindu Succession Act, 1956. Mere long possession or entries for many years in the revenue record cannot confer title on Mathura or the appellants since it has not been shown that Bhima had by any legal instrument relinquished his share in the property or estate in favour of Mathura or Appa. It is in that situation, Lower Appellate Court has partly decreed the suit with which I find no fault. At the same time, Lower Appellate Court has taken care in consonance with the judgment of the Supreme Court in case of Khemchand Shankar Choudhari and Another Vs. Vishnu Hari Patil and Others, , protected the interest of the purchaser. In view of above, it is clear that learned Lower Appellate Court has rightly applied the law and passed the decree. Neither I find any fault nor any substantial question of law involved is in this second appeal. Hence following order is passed.

ORDER

Second Appeal No. 173/2013 is summarily dismissed.

No costs.