PETER FRANCIS CONCEICAO Vs. CANDOLINA CONCEICAOAND ANOTHER

JUDGEMENT

(1.) Heard Mr. Sudin Usgaonkar, learned Senior Counsel appearing for the appellants, Mr. S. S. Kantak, learned Senior Counsel appearing for the respondent no.1 and Mr. V. Korgaonkar, learned counsel appearing for the respondent no.2.

(2.) The above appeal came to be admitted on the following substantial questions of law by order dated 12.04.2007.

(3.) Mr. Sudin Usgaonkar, learned counsel appearing for the appellants has assailed the impugned judgments essentially on the ground that the sale deed challenged in the year 1989 was registered on 12.06.1975 which was hopelessly barred by limitation. The learned Senior Counsel further pointed out that it is an admitted position that the sale deed was in custody of the respondent/original plaintiff and as such the question of claiming that she had no knowledge of the contents of the sale deed are totally misconceived. The learned Senior Counsel further pointed out that the fact finding Courts below have erroneously come to the conclusion that the suit was not barred by limitation as according to him when the sale deed itself shows that the original plaintiff had knowledge of the contents thereof and on this ground alone the suit deserves to be dismissed. The learned Senior Counsel further pointed out that admittedly the sale deed was in the name of the appellant no.1 herein and as such the burden was on the respondent/original plaintiff to show that the sale deed stands vitiated. It is further pointed out that the pleadings do not spell out any case of fraud nor any particular therein which could remotely suggest that any fraud was committed by the appellants. The learned Senior Counsel further pointed out that there is no pleading of undue influence and as such the judgments of the Courts below decreeing the suit filed by the respondent/original plaintiff is totally misplaced. The learned Senior Counsel further submits that the recitals in the sale deed itself point out that the consideration was received by the respondent no.2 from the appellants and as such, the question of claiming that the property purchased for the benefit of the respondent/original plaintiff is unjustifiable. The learned Senior Counsel further pointed out that the relief granted by the Courts below is erroneous as according to him there was no relief sought for rectification of the sale deed. The learned Senior Counsel further pointed out that the total consideration was paid by the original defendant/appellant no.1 and that the claim of the plaintiff/respondent no.1 is totally untenable. The learned Senior Counsel thereafter has minutely taken me through the substantial questions of law to point out that the substantial questions of law are to be answered in favour of the appellants.