The main legal point established in the judgment is the acknowledgment of the plaintiffs' share in the suit property, the applicability of limitation in setting aside the sale deed, and the partition of the suit property.

JUDGMENT

Sandeep K. Shinde, J. - Appellant/defendant No.5, in the Regular Civil Suit No.81 of 2000, instituted by respondent nos.1 and 2 herein, has preferred this appeal against the decree dated 14th July, 2015, in Regular Civil Appeal No.68 of 2008 passed by the District Judge-2, Nifad, Nashik.

2. Facts of the case are as follows:

Ratnabai and Satyabhamabai, respondent nos.1 and 2 (Plaintiffs) instituted the suit against their brothers Rangnath (Defendant No.1), Raghunath Damu Sanap (Defendant No.2), Sister, Kamlabai (Defendant No.3) for partition of the suit agricultural land admeasuring 53R. The suit was instituted in December, 1998 for two fold reliefs; one, for partition and another to set aside the sale deed executed by Rangnath (Defendant No.1) in favour of Raghunath Damu Sanap (Defendant No.2). It is plaintiffs case that, brother, Rangnath, in collusion with Revenue Officer, recorded his name in Revenue records, projecting suit property had fallen to his share. Resultantly, Mutation Entry 428 was certified. Whereafter Rangnath sold the suit property to brother Raghunath, and as such another Mutation Entry 291, was certified. Whereafter plaintifs demanded their share, but since refused, sisters instituted the suit. In appeals, after perusing Written Statement of brothers, Rangnath and Raghunath, plaintifs discovered that Rangnath had sold the suit property to Bhausaheb, son of Raghunath. Also, learned about, the partition deed dated 8th February, 1994, purportedly, made by Pandharinath (Father of Plaintifs and Defendant Nos.1,2 and 4) and will dated 11th February, 1994 whereby Pandharinath bequeathed suit property to the Rangnath. Following that, by amending plaint, Bhausaheb (Son of Raghunath) was impleaded as defendant no.5 and declaration was sought, to the efect that sale deed dated 17th December, 1997 executed by Rangnath (Defendant No.1) in favour of Bhausaheb (Defendant) was illegal. Also, sought a declaration that partition deed dated 8th February, 1994 and will of Pandharinath dated 11th February, 1994, were illegal and not binding on them. Amendment was granted in August, 2005.

3. This appeal is preferred by Bhausaheb (Defendant No.5)

4. Before the Trial Court, Bhausaheb (Defendant No.5) had raised, the issue of limitation by taking recourse to the provisions of Section 21 of the Limitation Act read with Article 57. He contended, that, in terms of Section 21, the suit instituted against him is deemed to have been instituted in the year August, 2005 (when impleaded as defendant no.5) but at the material time, it was barred by limitation in terms of Article 57 of the Limitation Act. Thus, Bhausaheb, contended prayer, seeking, to set aside the sale deed dated 17th December, 1997, executed in his favour by Rangnath (Defendant No.1), was barred by limitation.

5. Be that as it may, the learned Trial Court upon appreciating the evidence although held, that plaintiffs have proved their 1/5th share each in the suit property, the relief, seeking declaration to set aside the sale deed executed by Rangnath (Defendant No.1) in favour of appellant-Bhausaheb was declined being barred by limitation and on this count, the suit was dismissed.

6. It may be stated, the finding of the Trial Court, acknowledging, plaintiffs 1/5th share each, has not been assailed either by Ranganath nor by Raghunath nor by Bhausaheb (Appellant herein) nor fled cross-objections in Regular Civil Appeal preferred by the plaintiffs.

7. Appellate Court, allowed the appeal and set aside the decree of the Trial Court. Operative order reads as follows:

ORDER

"(i) The appeal is partly allowed,

(ii) The judgment and decree passed by the learned trial Court in RCS NO.81/2000 dated 21-02- 2006 is quashed and set aside,

(iii) Suit bearing RCS No.81/2000 is partly decreed with costs,

(iv) Plaintiff Nos.1 and 2 and defendant Nos.1,3 and 4 are entitled for 1/5th share each in the suit property. Property be partitioned accordingly and possession of respective shares of plain