Allowed

Shri. Popat Sakharam Nikam and Ors. v. Shri. Bhagwan Hari Nikam and Ors.

Bombay HC25 Sept 2019CRA/187/2018

Case brief

AI extract

What is this about?

The High Court set aside the Impugned order rejecting the application under Order VII Rule 11 of CPC. The trial court was directed to rehear the matter afresh, noting it had not considered a relevant Supreme Court decision, leaving legal questions about limitation and maintainability to the lower court.

What did the court decide?

The Impugned order is set aside; the trial court is to rehear the application under Order VII Rule 11 of CPC on its own merits.

Shri. Popat Sakharam Nikam and Ors. Vs Shri. Bhagwan Hari… — Property and Title | Bombay HC (2019)

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cra 187.18.doc

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Urmila Ingale

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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 CIVIL REVISION APPLICATION NO. 187 OF 2018

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Shri Popat Sakharam Nikam and ors. .. Applicants
Vs.

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Shri Bhagwan Hari Nikam and ors. .. Respondents

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Mr.Girish R.Agrawal, for the Applicant.
Mr.Anilkumar K.Patil, for the Respondents No. 1 to 4.

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CORAM : M.S.KARNIK, J.

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 DATE : 25th SEPTEMBER 2019

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P.C.:

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. Heard learned Counsel for the applicants.

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2.This Civil Revision Application challenges the order

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dated 05/12/2017 passed by the trial Court rejecting the
application made by the petitioners – defendants under Order
VII Rule 11 (d) of CPC. The plaintiffs had filed the Suit for
declaration, injunction and possession. The plaintiffs prayed for
declaration that the sale deed dated 31/10/2015 executed by

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cra 187.18.doc

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defendants No. 1 to 2 in favour of defendants No. 3 to 4 be
declared as void and not binding on the plaintiffs. It is the case
of the plaintiffs that suit property was re-granted to them in the
year 1964 under the provisions of the Maharashtra Land
Revenue Code (for short ‘Code’).

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3.The defendants by filing the application under Order
VII Rule 11 of C.P.C. contended that in respect of re-grant made
in the year 1964, the Suit filed by plaintiffs in the year 2016
claiming ownership rights over the suit property is ex-facie
barred by Law of Limitation. It is their further contention that
even in view of the provisions of the Maharashtra Prevention of
Fragmentation & Consolidation of Holdings Act (for short ‘Act’)
as per the bar contained under Section 36A of the Act, the Suit
is not maintainable.

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4.The trial Court was of the opinion that as sale deed
that is under challenge is of the year 2015, the Suit is within
limitation. It further came to the conclusion that the Suit is not

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cra 187.18.doc

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barred by the provisions of the Act. Learned Counsel for the
petitioners would submit that re-grant in favour of the plaintiffs
is of the year 1964. According to him, since 1964 though
plaintiffs claim to have subsisting right, title and interest in the
suit land by virtue of re-grant order of 1964 made by State
under the provisions of the Code, they did not take any steps to
claim ownership rights. It is only after 50 years that the present
Suit is filed in the Civil Court and therefore the Suit is ex-facie
barred by Law of Limitation. To support his submission,
learned Counsel for the petitioner relied upon the decision of
the Apex Court in the case of Eureka Builders and ors. Vs.
Gulabchand s/o Veljee Dand since deceased by legal
representatives and ors. Reported in (2018) 8 Supreme Court
Cases 67. The decision relied upon by learned Counsel for the
petitioners in Eureka Builders (supra) is dated 03/05/2018. The
impugned order is passed by the trial Court on 05/02/2017.

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5.In this view of the matter, the trial Court did not
have the advantage of considering the decision of the Apex

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cra 187.18.doc

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Court in Eureka Builders (supra) . Though it is the submission
of the learned Counsel for the respondents – original plaintiffs
that the decision in Eureka Builders (supra) is not applicable in
the facts of the present case, according to me on a reading of
the decision of the Apex Court, it would be in the fitness of
things if the trial Court decides the application under Order VII
Rule 11 upon considering the law laid down by the Apex Court
in Eureka Builders (supra). The order passed by the trial Court
therefore needs to be set aside only for the reason that the trial
Court did not have the advantage of the decision of Eureka
Builders (supra) while deciding the matter. The trial Court to
decide the application made under Order VII Rule 11 of C.P.C
afresh on its own merits without being influenced by any of the
observations made by me. The trial Court would obviously
consider the submission of the learned Counsel for plaintiff that
said decision of the Apex Court has no application to the facts of
the present case if canvassed. The impugned order is set aside.
The trial Court to rehear the application made under Order I
Rule 11 of C.P.C on its own merits and in accordance with law.

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cra 187.18.doc

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6.The Civil Revision Application is allowed in the

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above terms.

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 (M.S.KARNIK, J.)

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Digitally
signed by
Urmila Urmila P.
P. IngleDate:
2019.09.26
Ingle 18:41:16
+0530

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Shri. Popat Sakharam Nikam and Ors. v. Shri. Bhagwan Hari Nikam and Ors.

Case brief

What is this about?

What did the court decide?

Shri. Popat Sakharam Nikam and Ors. v. Shri. Bhagwan Hari Nikam and Ors.

Case brief

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