Second Appeal No.599/2018

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

SECOND APPEAL NO.599 OF 2018 WITH

CIVIL APPLICATION NO.9147 OF 2018

Rajendra s/o Devidasrao Giri

… APPELLANT

VERSUS

Amir s/o Musa Pathan & ors.

… RESPONDENTS

.......

Shri S.S. Manale, Advocate for appellant

Shri S.N. Rodge, Advocate for respondents No.1 to 3

Shri B.R. Kedar, Advocate for respondents No.3 to 6

....…

CORAM :

R. G. AVACHAT, J.

Date of reserving order : 21st June, 2022

Date of pronouncing order : 5th July, 2022

O R D E R :

This Second Appeal is being decided finally at

admission stage with the consent of learned Advocates for the

parties. I have considered the substantial questions of law

formulated by the learned Advocate for the appellant herein.

The gist thereof is one and the same. The following

substantial question of law arise in this appeal :-

Whether both the courts below have

considered that since the plaintiffs and

defendants No.1 to 3 are tenants in common,

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the limitation for filing the suit to set aside

sale is independent to each of them and one

of them cannot seek a discharge for others,

therefore, the starting point of limitation

would be different for each of them, the suit

is therefore barred by limitation ?

2.

For the sake of convenience, the parties to this

appeal are referred to as per their status in the suit. This

appeal has been preferred by the original defendant in the

suit, being Regular Civil Suit No.89/2011. Parties to the suit

are Muslims, except the defendant No.4 (purchaser). The suit

is basically filed for partition and separate possession with

other consequential reliefs such as restraining the defendant

No.4 from creating third party interest in respect of the suit

properties.

3.

Musa was a common ancestor. He died in the year

1995. He was survived by his widow Goribee (defendant

No.1), three sons namely Amir, Nabi and Jainu (plaintiff No.1

and defendants No.2 and 3 respectively) and plaintiffs No.2

and 3 are his daughters. Deceased Musa was the owner, in

possession of 6 Hectors 73 R land in Gut No.216. He also

owned a house, being Grampanchayat property No.17. Both

these properties are the subject matter of the suit. On the

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demise of Musa, all these heirs inherited the suit properties.

Musa is stated to have effected partition of some of the suit

land among himself and defendants No.1 to 3. As per the

said partition, 1 Hector 87 R land was allotted to Nabi and 1

Hector 66 R land was allotted to the defendant No.3 Jainu.

The name of their mother, defendant No.1, was recorded as a

guardian of these two sons in the revenue record since they

were minors. It is the case of the plaintiffs, that such

partition has never been effected. If at all it is said to have

been effected, the same is not binding on any of the heirs of

the deceased Musa.

4.

The defendant No.1 sold 1 Hector 25 R land in Gut

No.216 to the defendant No.4 under a registered sale deed

dated 19/4/2001. The plaintiff claimed to have realised about

the said transaction at the time of sanction of mutation entry

pertaining thereto. The suit, therefore, came to be filed for

the reliefs stated hereinabove.

5.

The defendant No.4 contested the suit contending

it to be a collusive suit among heirs of deceased Musa. It is

also his case that, while Musa effected partition of the

agricultural land, those who were not given the share,

necessarily came to be excluded. The plaintiff No.2 was

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major when the sale deed was effected in his favour. The

defendant No.1 sold the land for family needs. The suit was

mainly contested on the ground of having been barred by

limitation.

6.

The trial Court decreed the suit. It, however,

refused to grant decree for partition in respect of the suit

agricultural land for