KONDIBA Vs. DASHRATH

JUDGEMENT

(1.) 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 Diwane deceased through Lrs. Smt. Laxmibai wd/o Nagorao Diwane and others Vs. Narayan Awadutrao Dighe since deceased Through Lrs. Smt. Sulochana Narayan Dighe and ors., 2000 2 MhLJ 273. 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.

(2.) 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.

(3.) 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 Banarasi Das and Kundanlal Vs. Kanshi Ram and ors., 1963 AIR(SC) 1165 herein in paragraph No.15 observed thus :