Dismissed

Shri. Namdev Baburao Bhosale v. Chandrakant Bhujangrao Sonawane and Others

Bombay HC2 Apr 2014SA/1047/2012

Case brief

AI extract

What is this about?

The High Court dismissed its second appeal and disposed of the accompanying civil application. The appellant challenged the lower court’s dismissal of his suit seeking declaration that a 1981 sale deed was illegal and an injunction. The court held the plaintiff failed to prove fraud and the suit was barred by limitation.

What did the court decide?

Appeal dismissed; civil application disposed of. Injunction application granted for eight weeks.

Shri. Namdev Baburao Bhosale Vs Chandrakant… — Contract and Commercial Disputes | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT MUMBAI CIVIL APPELLATE JURISDICTION

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SECOND APPEAL NO.1047 OF 2012 WITH CIVIL APPLICATION NO.2076 OF 2012

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Namdev Baburao Bhosale … Appellant Vs. Chandrakant Bhujangrao Sonawane and others … Respondents

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Mr. Rajiv Patil i/b. Dipak S. Shinde for the Appellant. Mr. V. A. Shastry for Respondent Nos.1 and 2.

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CORAM : R. G. KETKAR, J. DATE : 2^ND APRIL, 2014

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ORDER:

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Heard Mr. Patil, learned Senior Counsel for the appellant and Mr. Shastry, learned Counsel for respondent Nos.1 and 2 at length.

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By this Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short 'C.P.C.'), the original plaintiff has challenged the judgment and decree dated 10.08.2012 passed by the learned District Judge-3, Satara in Regular Civil Appeal No.58 of 2009. By that order, the learned District Judge allowed the appeal preferred by defendant Nos.1 and 2 and quashed and set aside the judgment and decree dated 15.12.2008 passed by the learned Civil Judge, Junior Division, Phaltan in Regular Civil Suit No.73 of 2003. The learned District Judge dismissed the Suit instituted by the appellant.

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The appellant, hereinafter referred to as plaintiff, instituted Suit for declaration that the sale deed dated 16.01.1981 is illegal and was never executed by him. The plaintiff also sought injunction restraining the defendants from causing disturbance to peaceful possession of his 8 Anas share in respect of Gat No.383 of Village Javli, Taluka Phaltan (for short 'suit land'). Defendant Nos.1 to

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3 contested the Suit and contended that father of the defendant No.3 had purchased the suit land in the name of one Sindhutai Taware by paying consideration of Rs.6,000/-. Father of the defendant No.3 was in physical possession of the suit land on behalf of said Sindhutai. The sale deed was executed in the name of the plaintiff. On 16.01.1981, the plaintiff in turn sold the property to defendant Nos.1 and 2 to the extent of his 8 Ana share. Possession was given to defendant Nos.1, 2 and father of defendant No.3. Thereafter, defendant No.3 and his brothers came into physical possession of the suit land.

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On the basis of the pleadings of the parties, the learned trial Judge framed necessary issues. The learned trial Judge decreed the Suit. Against that, respondent Nos.1 and 2 preferred appeal, which is allowed by the learned District Judge. It is against this decision, the original plaintiff has preferred the Second Appeal.

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In support of this Appeal, Mr. Patil invited my attention to paragraphs 5 to 7 of the trial Court's judgment. He submitted that the plaintiff acquired knowledge of the alleged sale deed of 16.01.1981 only upon service of proceedings of tenancy case No.122 of 2002. Defendant Nos.1 and 2, in whose favour the sale deed is executed, have not deposed. Defendant No.3, who is a power of attorney holder of defendant Nos.1 and 2, cannot act on behalf of defendant Nos.1 and 2. The learned trial Judge considered decision of the apex Court in the case of Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd. and others , AIR 2005 SC 439 . The attesting witnesses Bhagwan Bhiva Galande and Krishnarao Trimbak Saste also deposed that they were not present at the time of execution of the sale deed. Mr. Patil submitted that the learned trial Judge compared the signatures of the plaintiff on the plaint as well as evidence on affidavit and the signatures appearing on the sale deed. The learned trial Judge held that the signatures of the plaintiff are totally different. He, therefore, submitted that the plaintiff discharged the burden and established that the sale deed was fraudulently obtained by defendant Nos.1 and 2.

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As against this, the learned District Judge committed error in holding that the plaintiff did not establish fraud in execution of the sale deed as also wrongly held that the suit filed by the plaintiff was barred by limitation. He, therefore, submitted that the Appeal requires consideration.

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On the other hand, Mr. Shastry supported the impugned order. He submitted that the plaintiff came out with a specific case that the defendant Nos.1 and 2 got the sale deed executed from the plaintiff fraudulently. However, the plaintiff has not proved the fraud. That apart, from the evidence on record, it is evident that attesting witnesses admitted in the cross-examination that their signatures appeared on the sale deed. He further submitted that after considering the evidence on record, the learned District Judge categorically held that before effecting mutation entry, the plaintiff received notice and thus, aware of execution of the sale deed in the year 1981 itself. However, the present suit is instituted in the year 2003, and is therefore, clearly barred by limitation. He, therefore, submitted that no case is made out for interference.

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I have considered the rival submissions made by the learned Counsel appearing for the parties. I have also perused the material on record. As noted earlier, the plaintiff came with a specific case that defendant Nos.1 and 2 played fraud on him and got the disputed sale deed executed. The learned District Judge observed in paragraph 12 that when the plaintiff alleged that the defendant Nos.1 and 2 forged his signature and the signatures of the attesting witnesses, he ought to have moved the trial Court for sending the disputed signature for the opinion of the expert in this regard. Mr. Patil submitted that defendant Nos.1 to 3 moved application at the fag end of the trial and they did not press that application. In my opinion, basically when the plaintiff alleges fraud, burden is on him to establish the case of fraud. It was, therefore, necessary on the part of the plaintiff to take out appropriate proceedings before the trial Court for sending the disputed signatures for the opinion of handwriting expert and prove that the signatures on the sale deed are not that of the plaintiff and the attesting witnesses.

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That apart, in the examination-in-chief though the attesting witnesses deposed that they were not present at the time of execution of the sale deed, in the cross-examination they have admitted their signatures on the sale deed. I, therefore, do not find that the learned District Judge committed any error in holding that the plaintiff failed to establish case of fraud.

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Insofar as the Suit instituted by the plaintiff is concerned, the learned District Judge observed in paragraph 6 that the plaintiff admitted in his evidence that he came to know about the disputed sale deed in the year 1981. The proceeding regarding effecting mutation entries in the name of defendants on the basis of disputed sale deed started in the year 1981 and the notice of that proceeding was also received by the plaintiff. After considering the evidence on record, the learned District Judge ultimately observed in paragraph 8 that the suit for declaration that the disputed sale deed is illegal is barred by limitation. Part III of the Limitation Act, 1963 deals with Suits relating to declaration. Article 56 provides period of limitation of three years for obtaining declaration in regard to forgery of an instrument issued or registered and the period of limitation of three years begins to run when the issue or registration becomes known to the plaintiff. Article 58 provides period of limitation of three years for obtaining any other declaration and the time begins to run when the right to sue first accrues. The learned District Judge held that in the year 1981, the plaintiff was aware of disputed sale deed. The Suit is instituted in the year 2003.

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In view thereof, I do not find that the learned District Judge committed any error in holding that the Suit instituted by the plaintiff was barred by limitation. That apart, that registration of the document itself is a constructive notice to the parties. In the result, no question of law much less substantial question of law arises in this Appeal. Appeal fails and the same is dismissed.

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In view of the dismissal of the Appeal, Civil Application does not survive and the same is disposed of.

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At this stage, Mr. Patil orally applies for grant of injunction restraining respondent Nos.1 and 2 from creating third party interests for a period of eight weeks from today. He submitted that during the pendency of the Suit, the injunction was operating against respondent Nos.1 and 2 from creating third party interests. The Suit was partly decreed by the learned trial Judge and during the pendency of the appeal, there was no stay to the trial Court's decree.

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Mr. Shastry states that respondent Nos.1 and 2 do not intend to create third party interests for the period of eight weeks from today. Statement made by Mr. Shastry is accepted. Order accordingly

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(R. G. KETKAR, J.)

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Minal Parab

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Shri. Namdev Baburao Bhosale v. Chandrakant Bhujangrao Sonawane and Others

Case brief

What is this about?

What did the court decide?

Shri. Namdev Baburao Bhosale v. Chandrakant Bhujangrao Sonawane and Others

Case brief

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What did the court decide?

What the court decided

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