Dismissed

Balkrishna Dnyanu Gaikwad Since Deceased Thr. Lrs. Chandrakant Balkrishna Gaikwad and Ors. v. Babu Dnyanu Gaikwad Since Deceased Thr. Lrs. Shantabai Baburao Gaikwad and Ors.

Bombay HC1 Mar 2024IA/1126/2022

Case brief

AI extract

What is this about?

Second appeal against modification of shares in a partition decree and rejection of preemption relief. The High Court held the suit challenging sale deeds dated 4 May 1995, instituted via amendment only on 1 September 2010, was barred by limitation under Article 97. Appeal rejected; interim application disposed of.

What the court decided

AI extract

Balkrishna Dnyanu Gaikwad Since Deceased Thr. Lrs. Chandrakant… — Partition | Bombay HC (2024)

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27 sa 151.22 n ia as.doc
k 1/4

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

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SECOND APPEAL NO.151 OF 2022

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WITH

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INTERIM APPLICATION NO.1126 OF 2022

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IN

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SECOND APPEAL NO.151 OF 2022

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Balkrishna Dnyanu Gaikwad

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since deceased through legal heirs & Ors.....Appellants/Applicants
V/S

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Babu Dnyanu Gaikwad

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since deceased through legal heirs & Ors. ....Respondents

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Mr. Kuldeep U. Nikamfor the Appellants/Applicants.

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Mr. Mandar V. Limaye for the Respondents.

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CORAM: SANDEEP V. MARNE, J.

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DATE : MARCH 1, 2024.

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P.C.:

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1By this Appeal the Appellants challenge judgment and order
dated 18 December 2021 passed by District Judge-1, Sangli in Regular
Civil Appeal No.64 of 2014. The Appeal filed by the Appellants has been

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katkam Page No. 1 of 4 1 March 2024

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27 sa 151.22 n ia as.doc
k 2/4

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allowed by the First Appellate Court to the limited extent of modifying
the shares decided by the Trial Court in its decree dated 11 February
2014 passed in Regular Civil Suit No.83 of 2012 (old Regular Civil Suit
No.240 of 1989).

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2The limited grievance that the Appellants agitate in the present
Appeal is about non-grant of relief of preemption in respect of sale of
some portion of the suit property by Defendant No.1 in favour of
Defendant No.4. Plaintiff instituted Regular Civil Suit No.240 of 1989
for partition as well as for enforcement of his right of preemption. As on
the date of institution of the suit, there was no real cause of action to
seek the prayer of preemption as Defendant No.1 had not sold his
portion of the land to any person. The suit was apparently decreed
ex-parte on 10 October 1991 and shares of the parties were determined.
It appears that Defendant No.1 proceeded to sell the share allotted to
him in favour of Defendant No.4 by executing two sale deeds dated 4
May 1995. Later Defendant No.1 applied for setting aside the ex-parte
decree. Though his Application was rejected, the Appellate Court
allowed the Appeal and directed restoration of the suit. It appears that
some time was taken for the actual restoration of the suit which
proceedings in which commenced in the year 2006. Defendant No.4
appeared in the suit in the year 2006 and informed the Plaintiff about

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katkam Page No. 2 of 4 1 March 2024

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27 sa 151.22 n ia as.doc
k 3/4

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the sale transaction vide sale deeds dated 4 May 1995. Even after
acquisition of knowledge of execution of sale deeds dated 4 May 1995,
Plaintiff failed to amend the plaint so as to include a challenge to the
sale deeds dated 4 May 1995. The amendment was apparently moved
and granted on 1 September 2010.

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3Under Article 97 of the Limitation Act the period of limitation for
filing a suit for preemption is one year and the period of limitation is to
be counted from the date possession is taken over by the purchaser and
in the event of non-grant of possession to the purchaser from the date of
the purchase. In the present case apparently possession was not granted
in favour of Defendant No.4 and therefore the date of purchase i.e. 4
May 1995 became the starting point of limitation. Even if it is assumed
that plaintiff acquired knowledge about execution of the sale deeds in
the year 2006, the amendment ought to have been moved immediately
thereafter. Thus qua Defendant No.4 the institution of suit to question
the sale deeds executed in his favour got instituted on 1 September 2010.
The suit for seeking a declaration for sale deed dated 4 May 1995 was
thus clearly barred by limitation. Both Trial as well as the First
Appellate Court have rightly rejected Plaintiff’s prayer for setting aside
the sale deeds dated 4 May 1995. No patent error can be traced in the
orders passed by the Trial Court and the First Appellate Court. No

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katkam Page No. 3 of 4 1 March 2024

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27 sa 151.22 n ia as.doc
k 4/4

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substantial question of law is involved in the present Appeal, the Second
Appeal is accordingly rejected.

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4In view of disposal of the Second Appeal, nothing survives in the
Interim Application and the same is disposed of accordingly.

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(SANDEEP V. MARNE, J.)

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Digitally
signed by
SUDARSHAN
SUDARSHAN RAJALINGAM
RAJALINGAM KATKAM
KATKAM Date:
2024.03.05
16:25:07
+0530

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Page No. 4 of 4 1 March 2024

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katkam

Balkrishna Dnyanu Gaikwad Since Deceased Thr. Lrs. Chandrakant Balkrishna Gaikwad and Ors. v. Babu Dnyanu Gaikwad Since Deceased Thr. Lrs. Shantabai Baburao Gaikwad and Ors.

Case brief

What is this about?

What the court decided

Balkrishna Dnyanu Gaikwad Since Deceased Thr. Lrs. Chandrakant Balkrishna Gaikwad and Ors. v. Babu Dnyanu Gaikwad Since Deceased Thr. Lrs. Shantabai Baburao Gaikwad and Ors.

Case brief

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What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

Coram

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