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2017 Supreme(Bom) 369
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
R.K. DESHPANDE, J.
Ratnakar Pralhad Deoras (deceased) through L.Rs – Appellant
Versus
Vyankatesh Shamrao Fulmali, (deceased) through L.Rs – Respondent
Second Appeal No. 67 of 2012
Decided on : 23-03-2017
Advocate Appeared:
For the Appellant : Shri N.B.Kalwaghe, counsel
For the Respondent: Shri S.P.Kshirsagar, counsel
Important Point – The question of res judicata is a mixed question of law and fact and was required to be raised before the Courts below.
Headnote:Civil Procedure Code – Order 26 Rules 13 and 14 – Original plaintiffs in this second appeal challenge the order of the first appellate court dismissing the appeal against order of trial court dismissing the suit for partition and separate possession - The question of res judicata is a mixed question of law and fact and was required to be raised before the Courts below - The trial Court has not framed any issue on this aspect of the matter, though the lower appellate Court has cursorily deal with this aspect of the matter in paragraph 18 of the judgment - The determination of share in the joint family property and the plaintiffs being subsequent purchasers were entitled to file a suit for getting a decree for partition and separate possession, which can be enforced in accordance with law - The judgment and order passed by the lower appellate Court needs to be quashed and set aside and the Regular Civil Suit filed by the plaintiffs is required to be decreed.
Result - The second appeal is allowed
1. The Special Civil Suit No. 376 of 1993 for partition and separate possession was dismissed by the trial Court on 20.07.2007. The lower appellate Court has dismissed Regular Civil Appeal No. 450 of 2007 on 22.07.2011. Hence, the original plaintiffs are before this Court in this second appeal.
2 On the question of plaintiffs' entitlement to a decree for partition and separate possession, though the trial Court was against the plaintiffs, the lower appellate Court holds that the plaintiffs have established their entitlement for 3/10th share in the suit property. However, the lower appellate Court has concurred with the findings of the trial Court on the question of bar of limitation and therefore, dismissal of the suit is confirmed in appeal.
3. On 03.10.2012, this Court admitted the present matter, framing the substantial question of law as under;
Whether the appellate Court was right in maintaining the finding recorded by the trial Court that the suit was barred by limitation? Shri Kshirsgar, the learned counsel appearing for respondent No.5 waived the service of notice and thereafter all other parties were served and the matter was listed before this Court on 17.03.2017, when the following order was passed.
"Put up this matter on Thursday, 23.03.2017 at the end of Board.
If the counsel for the respondent remains absent, the matter shall be decided in accordance with law after hearing the learned counsel for the appellant. No further adjournment shall be granted".
4. Except the respondent No.5, who is represented by Shri S.P.Kshirsagar, the learned counsel, no one appears for the other respondents in spite of service of notice. The matter is, therefore, heard on the aforesaid substantial question of law.
5. The defendant Nos. 1 and 2 were held entitled to 3/10th share in the suit property under a decree passed in earlier Special Civil Suit No. 145 of 1968, decided on 31.08.1972. The decree was not put to execution and on 29.10.1981, the defendant Nos. 1 and 2 sold their undivided 3/10th share in the suit property to the plaintiffs by virtue of registered sale deed dated 29.10.1981, marked as Exh.50.
6. The defendants have not filed any cross objection, challenging the finding of the appellate Court on the title of the plaintiffs on the basis of sale deed at Exh.50 but Shri Kshirsagar, the learned counsel appearing for respondent No.5 has supported the findings recorded by the lower appellate Court that the suit is barred by law of limitation as contained in Article 136 of the Limitation Act. Shri Kshirsagar, the learned counsel, has relied upon the decision of the Apex Court in the case of Dr. Chiranji Lal (D) by L.Rs vrs. Hari Das (D) by L.Rs, reported in (2005) 10 SCC 746, for the proposition that if a decree for partition and separate possession is not engrossed on the stamp paper as required by law, it becomes unenforceable and the defendant Nos. 1 and 2 having failed to get the decree passed in Special Civil Suit No. 145 of 1968 executed within the period of 12 years, the suit in question filed on 17.04.1993 is barred by law of limitation.
7. The effect of failure to get a final decree for partition and separate possession engrossed on the stamp paper is that the decree becomes unenforceable and what remains is the determination of share by a judgment delivered in a suit for partition and separate possession. Before expiry of period of 12 years as prescribed under Article 138 of the Limitation Act, the undivided 3/10th share in the property was sold by defendant Nos.1 and 2 to the plaintiffs by registered sale deed dated 29.10.1981. The plaintiffs had issued notices dated 07.09.1982 and 07.09.1992, calling upon the defendants to get the share demarcated. The suit in question was filed on 17.04.1993 for partition and separate possession.
8. This case is not concerned with the execution of a decree and therefore, the applicability of the provision of Article 136 of the Limitation Act is excluded. It is the suit for partit
