AJIT LINGAJI DHARNE Vs. VISHNU GOPAL GAWADE

JUDGEMENT

(1.) Heard Mr. Walavalkar, learned counsel for the Appellant. He submits that there are three substantial questions of law arising in these Second Appeals. According to him, the suit filed by the Respondent is barred by limitation as Article 113 will apply to the suit filed by the Respondent and therefore, suit ought to have been filed in three years. He submitted that the Trial Court rightly held that suit is barred by limitation, however, the learned Appellate Court by applying Article 65 has come to the conclusion that suit is within limitation. He submitted that another substantial question of law is that the suit filed by the Plaintiff is hit by principles of constructive res judicata and will be covered by Explanation IV of Sec. 11 of Code of Civil Procedure. According to him, the third substantial question of law is that the Respondent has simplicitor filed suit for injunction and has not sought declaration of ownership and therefore, in such type of suit the Courts could not have examined the issue of title. To substantiate the said contention, he has relied on the decision of Supreme Court in Anathula Sudhakar vs. P. Buchi Reddy (Dead) By LRS. and Ors.; 2008 4 SCC 594

(2.) The factual position on record show that the Appellant- Ajit Lingaji Dharne filed Regular Civil Suit No.19 of 2004 (renumbered as Regular Civil Suit No.18 of 2015) seeking simplicitor injunction. In the said suit, it is the claim of the Appellant that the suit property is their ancestral property, and therefore, his father-Lingaji Dharne and other co-shares were the joint owners and possessors of the suit land. However, names of co-owners Laxman Luma Dharne and Suhas Luna Dharne were recorded in the record of rights. Taking advantage of said revenue entries said Laxman Dharne and Suhas Dharne illegally transferred suit land in favour of Respondent-Vishnu Gopal Gawade. It is significant to note that inspite of said contention the Appellant has not sought declaration of his ownership and filed suit simplicitor for perpetual injunction.

(3.) The Respondent - Vishnu Gopal Gawade filed Regular Civil Suit No.45 of 2015 (renumbered as Regular Civil Suit No. 68 of 2008). In the said suit, it is the contention of the Respondent that he is the owner of the suit property and recently Appellant has taken forcible possession and therefore, encroached the property. The Respondent has inter alia sought following relief in the plaint: VARNACULAR TEXT In the written statement filed in the suit filed by the Respondent, it is the contention of the Appellant that although it is the ancestral property of the Appellant only name of co-owners Laxman Luma Dharne and Suhas Luma Dharne were recorded in the record of rights and these persons illegally transferred the suit land in favour of the Respondent without knowledge of the Appellant.