SHRIRAM TULSHIRAM BALI Vs. KUKAJI

JUDGEMENT

(1.) Original defendant no.3 in Regular Civil Suit No. 97/1982 instituted by the present respondent nos. 1 to 3 has filed this Second Appeal, challenging the concurrent findings reached by the courts below. The respondent nos. 1 to 3 instituted a suit for partition and separate possession of residential house claiming that it was jointly purchased by their predecessors Himmatrao and real brother of Himmatrao by name Kashinath. Himmatrao expired on 1.5.1967 and he was survived by his mother Harnabai, by his son plaintiff no.1, by daughter plaintiff no.2 and by widow plaintiff no.3. It appears that Harnabai who was occupying the suit property disposed of the same by executing sale deed in favour of the original defendant no.1 - Kausabai, and Kausabai in turn executed sale deed in favour of the present appellant/defendant no.2. All these facts as also description of the suit property is not in dispute. The suit was opposed by the present appellant no.3, who claimed that Harnabai was joint owner with her sons, that she disposed of the property for legal necessity and in any case he was bonafide purchaser without notice. He also pointed out that he invested huge amount in making construction over the suit property. One of his contention was that the suit was barred by limitation as it was not filed within three years. The Trial Court framed appropriate issues and answered the same in favour of the plaintiffs. It passed decree for separating 3/8th share of the plaintiffs and appointed Commissioner for that purpose. The said judgment and decree of the Trial Court was then questioned by the appellant no.2 by filing Regular Civil Appeal No.6/1986. Vide judgment dated 20.11.1992 the Additional District Judge, Buldhana, dismissed the said appeal. This Court has thereafter on 23.03.1993 admitted the Second Appeal by formulating the following as substantial question of law.

(2.) In this background, I have heard Advocate Shri V.K. Paliwal, holding for Advocate Shri R.L. Khapre, for appellants and Advocate Shri S.N. Dhanagre, for L.Rs. of Respondent nos. 1, respondent nos.2 and 3.

(3.) Advocate Shri Paliwal, has contended that the sale deed executed by Harnabai in favour of Kausabai or subsequent sale deed executed by Kausabai in favour of these appellants was not challenged in Civil Suit and therefore it attained finality. He contends that as such the suit ought to have been dismissed as no relief in relation to those sale deeds was sought for or could have been granted. He further states that the suit to question those sale deeds ought to have been filed within three years and as the suit was filed after more than 12 years it was barred by limitation. He states that both the Courts have lost sight of this aspect of limitation. He further contends that the Courts have not considered that Harnabai herself had share in the property and therefore she can very well dispose of her share and the appellant purchased the said property for valuable consideration and invested huge amount in raising construction upon it. He urges that the bonafides of the present appellant in the matter are also not considered by the courts. According to him therefore, in addition to the question of law formulated while admitting the Second Appeal, question of limitation and question of equity, also need to be gone into by this Court.