This bench held that the second appeal did not admit for consideration as no substantial question of law was involved, specifically regarding the failure to ascertain the period of limitation issue effectively at the trial stage.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
GAG
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION.
SECOND APPEAL NO.986 OF 2012.
Subhadra Maruti Chavan :: Appellant.
Versus
Shrirang Laxman Padwal & Ors. :: Respondents.
Appearance =>
Mr. Nikhil N. Wadikar, Advocate for the Appellant.
CORAM => R.Y. GANOO, J. DATE => 22th JANUARY, 2013.
P.C. :-
Heard.
[2] Reg.Civil Suit No.99 Of 2003 was filed by the present
appellant in the Court of the Civil Judge,(Sr.Divn.), Satara for declaration of ownership on account of her succeeding the estate of her father. An order of injunction was also sought against the defendants ie. present respondents that they should not interfere with her possession over the suit lands.
[3] The learned Joint Civil Judge,(Jr.Divn.), Satara dismissed Regular Civil Suit No.99/2003 on 23rd January, 2009. Being aggrieved
2
by the said Judgment and Decree, the appellant had preferred Regular
Civil Appeal No. 122 Of 2009 in the District Court, Satara. The learned Ad-hoc District Judge – 1, Satara also dismissed said Appeal by the Judgment and Decree dated 26th June, 2012.
[4] The trial court had dismissed the suit on the ground that, appellant failed to prove that she is entitled to seek declaration of ownership as well as she failed to prove that she is entitled for an order of Injunction.
[5] Case put up before the Court by the respondents (Ori.
Defts.) herein that the appellant and her sisters executed an agreement
to sale on dated 22nd April, 1969 in favour of original Deft.No.1's father and executed a sale deed on 3rd April, 1971 as regards the suit property, has been accepted.
[6] In the appellate court, the suit was held to be beyond period of limitation as well as the case of the sale deed in favour of Laxman Padwal has been considered.
[7] Before this court, Mr. Nikhil N. Wadikar, learned counsel
for the Appellant contended that, though original suit was filed in
3
respect of agricultural land bearing Gat No.293 (Old Survey No.162/2 ) and Gat No.405/2 (Old Survey No.163/2A) situated at village Shendre, Tal.& Dist. Satara, the appellant is not pressing the relief in this Second Appeal as regards agricultural land bearing Gat No.405/2 (Old Survey No.163/2A) and the appellant is restraining her claim with regards to agricultural land bearing Gat No.293 (Old Survey No.162/2 ) only.
[8] It is case of the appellant that her father expired in the year 1960 and on account of that, she succeeded the estate of her father and became the owner thereof. It is also case of the appellant that, the present respondents behind back of the appellant managed to have mutation entry effected so as to enter their names in the revenue record of the suit lands. It was also contended by Mr. Nikhil N. Wadikar, learned counsel for the Appellant that, appellant was ignorant about the alleged sale deed executed on 3rd April, 1971 till the year 1983. With the aforesaid facts, Regular Civil Suit No. 99/2003 instituted by the appellant seeking declaration of ownership on account of succeeding the estate of her father will have to be treated as one filed beyond period of limitation as observed by the learned Adhoc District Judge – 1, Satara. Once claim of the present appellant
4
with main prayer for declaratory relief, cannot be granted; the appellant would not be entitled for subsidiary relief namely order of injunction against the respondents.
[9] In my view, the learned Ad-hoc District Judge – 1, Satara has rightly gone into the question of limitation as he was obliged to ascertain it on the basis of the pleadings.
[10] The appellant through her Advocate was duly heard on this question and that is why, no prejudice can be said to have been caused to the present appellant, though before the Trial Court, question as regards point of limitation was not raised by the present defendants, as also the learned Trial Judge had not ascertained the issue, whether the suit is beyond period of limitation.
[11] In view of the aforesaid discussion, points raised by learned counsel for the appellant cannot be accepted to admit the Second Appeal as no substantial question of law is involved. Hence, Second Appeal is dismissed at the state of admission. There shall be no order as to costs.
2 issues framed by the court
Whether the second appeal admits to consideration as there was no substantial question of law involved regarding limitation.
Whether the trial court was obliged to ascertain limitation based on pleadings on appeal when not raised below.
Subhadra Maruti Chavan
Shrirang Laxman Padwal
R.Y. GANOO
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
