GANESH SHIVAJI SUTAR Vs. VISHWANATH CHINMAYA SHERIGAR

JUDGEMENT

(1.) THE above Second Appeal arises out of the Judgment and order dated

(2.) -11-2009 passed by the Learned District Judge1 Sangli, by which, the Appeal filed by the Appellant herein being Regular Civil Appeal No.7 of 2004, came to be dismissed and resultantly the decree of dismissal of the Suit dated 2112009 passed by the Trial Court came to be confirmed. 2 The Suit in question being Regular Civil Suit No.382 of 1999 was filed by the Appellant/original Plaintiff for a declaration that the sale deed executed by the Defendant No.3 to the Suit i.e. his mother and Shivaji who was his father in favour of the Defendant Nos.1 and2 in respect of CTS Nos.954, 955 and 956 and municipal house No.2338/1 in Revision Survey 450/2 situated at Vita Taluka Khanapur is null and void. The Plaintiff had also prayed for possession of the suit property as also for injunction restraining the Defendants from carrying out any construction. It is not necessary for this Court to go into details of the antecedent ownership of the said property. For the purposes of the present Appeal, suffice it to say that Shivaji the father of the Plaintiff became one of the owners of the suit property and got the same mutated in the name of the Plaintiff in the City Survey record in the year 1982. The Suit filed by the Plaintiff for the relief which has been adverted to herein above was founded on the fact that he is the owner of the suit property. The sale deed was questioned on the ground that it is hit by the provisions of the Hindu Minority and Guardianship Act, as permission of the District Court was not sought by his guardian i.e. his mother prior to entering into the transaction with the Defendant Nos.1 and 2.The Plaintiff has therefore sought a declaration that the sale deed was not binding on him and since he required the property for business purposes and since the possession was denied by the Defendants that the Plaintiff had sought the relief of possession. The Defendant No.2 filed his Written Statement and set up a defence that the Suit is barred by limitation in view of the fact that it has not been filed within the period mentioned in Article 60 of the Limitation Act. It was averred that the Plaintiff has no exclusive right, title and interest in the suit property and that only on the basis of the City Survey record the Plaintiff could not claim to be the owner of the Suit property. The mother who is the Defendant No.3 to the Suit also filed her Written Statement which Written Statement was in favour of the Plaintiff. It was averred by her that the sale deed was got executed from her without bringing to her knowledge the nature of transaction. It was further averred by her that the entry made in favour of the Plaintiff was on account of the family arrangement. It was further averred by her that the Plaintiff is entitled to the relief sought in the Suit and therefore the Suit be decreed.

(3.) THE matter was carried in Appeal by the Plaintiff by filing Regular Civil Appeal No.7 of 2004. The Lower Appellate Court as can be seen has confirmed the finding of the Trial Court in so far as the issue whether the sale deed was got executed by fraud. However, the Lower Appellate Court has observed that the suit property was a joint family property of the Plaintiff and his parents and as such father of the Plaintiff being Karta of joint family has executed the sale deed in favour of the Defendant No.2. This observation has to be considered in the context of the fact that the Trial Court had held that the suit property was the exclusive property of Shivaji i.e. the father of the Plaintiff. In so far as the aspect of limitation is concerned, the Lower Appellate Court in the light of Article 60 of the Limitation Act, confirmed the finding of the Trial Court that the Suit filed in the year 1999 after the Plaintiff had attended majority in the year 1993, was time barred. The Lower Appellate Court therefore has by the impugned Judgment and order dated 2-11-2009 dismissed the Appeal and thereby confirmed the decree passed by the Trial Court. The Plaintiff has therefore been non suited on the point of limitation. The substantial questions of law which arise for consideration in the above Appeal are to the following effect.