Tahiliani 1 sa135-137.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY. CIVIL APPELLATE JURISDICTION. SECTOND APPEAL NO. 135 OF 2010 WITH SECOND APPEAL NO. 137 OF 2010 WITH CIVIL APPLICATION NO. 374 OF 2010. Smt.Nalini Gajanan Bhusar .... ..... ..... Appellant. V/s Mahadev Anna Amande (since deceased) by his L.Rs Dwaraka Mahadev Amande & Ors.... .... .... Respondents. Mr.A.B.Borkar, Adv. For the appellant Mr.M.J.Jamdar, Adv. For the respondents. CORAM: B.R.GAVAI, J. 23rd August, 2010. PC: By the present second appeals the appellant takes exception to the judgment and order passed by the learned District Judge, Karad, dated 17.12.2009 thereby allowing the Regular Civil Appeal No.398/2000 filed by the respondent and allowing Regular Civil Appeal No.399/2000. 2. The suit was filed by the respondents/plaintiffs for specific performance on the basis of an agreement dated 16.9.1948 allegedly executed by one Laxmibai in favour of one Krishna, predecessor-in-title of the plaintiffs. The said suit came to be decreed. In the said suit counter claim was also filed by the present appellants and defendants. The counter claim was also rejected. Being aggrieved by the said judgment and orders, two appeals came to be filed by the defendants. Regular Civil Appeal No.398/2000 was filed challenging the judgment and decree passed in favour of the plaintiffs. Regular Civil Appeal No.399/2000 was filed challenging the rejection of counter claim. Both Tahiliani 2 sa135-137.10.sxw the appeals are allowed by the learned District Judge hence the present appeals. 3. Learned counsel Mr.Borkar, appearing on behalf of the appellants submits that the judgment and order passed by the learned appellate court is not at all sustainable in law. He submits that the counter claim filed by the respondent-defendant was on the basis of cause of action which had occurred to him subsequent to delivery of his defence and as such was not sustainable in view of Rule 6A of Order VIII of Code of Civil Procedure. He submits that the learned appellate court has allowed the counter claim only on the ground that the objection in this regard was not taken before the trial court. Learned counsel submits that since said issue is a pure question of law, it could be raised at any stage and that learned appellate court had erred in allowing the counter claim only on that ground. Learned counsel has relied upon a decision of this Court in the case of Maruti Laxman Zhipare (Gawali) Vs. Rahul Arjun Sarang & Anr., 2008 (6) Bom.C.R.278. 4. As against this Mr.Jamdar, learned counsel appearing on behalf of respondent submits that in view of rule 6C of the Order VIII it was incumbent upon the plaintiff to have taken objection prior to framing of issues and since he has failed to take such objection prior to framing of issues, learned appellate court has rightly allowed both the appeals. 5. The appeals arise out of peculiar facts. The claim of the appellants is based on alleged agreement of sale executed by one Laxmibai dated 16.9.1948 in favour of Krishna. Un-disputedly Vinayak son of said Krishna had filed Regular Civil Suit No.93/1982 for injunction pertaining to the same property. The said suit was dismissed and an appeal carried there against being Regular Civil Appeal No.461/86 was also dismissed in 1990. The present plaintiffs who claim to have interest in the said property through deceased Krishna and Vinayak have filed the present suit in the year 1991. 6. The learned appellate court on the basis of evidence that was led before the trial court has held that the plaintiff had miserably failed to prove that the Tahiliani 3 sa135-137.10.sxw suit property was agreed to be sold by deceased Laxmibai in favour of Krishna by an agreement for sale dated 16.9.1948. Learned appellate court had found that none of the witnesses examined on behalf of the plaintiff had deposed that they had personal knowledge regarding this agreement and sale (Sathe Khat). In so far as claim of the plaintiffs that they were in possession of the suit property on the basis of (Sathe Khat) is concerned, the same was also negated by the appellate court finding that the in the said Sathe Khat there was no mention regarding delivery of possession. The learned appellate court has also referred to earlier round of litigation pertaining to the same property in which the plaintiffs had lost and found that the plaintiffs were not entitled for decree of specific performance. It has categorically been found that the claim of plaintiffs was resisted by defendants in the year 1982, by denying the claim of plaintiffs. Learned appellate court found that there was an inordinate delay of 41 years in filing suit for specific performance. In view of this specific finding based on the appreciation of evidence placed before it, no perversity could be noticed in the approach of the learned appellate court in so far as it denies claim of specific performance. In that view of the matter no merit is found in Second Appeal No.135/2000 and the same stands dismissed. 6. In so far as Second Appeal No.137/2000 is concerned, learned counsel for the appellant is right in contending that the counter claim has to be on the basis of cause of action which accrues prior to delivery of defence. However in the present case it is to be noted, that in pursuance to the order passed by the appellate court of granting temporary injunction in favour of the plaintiffs, the plaintiffs had taken possession of the land in question. It is on account of the subsequent event that has occurred during pendency of the suit, the defendants were required to lodge counter claim. In view of rule 6C of Order VIII the plaintiffs could have raised an objection in this regard prior to framing of issue. Admittedly same has not been done. If the plaintiffs would have raised objection to that effect, defendant could have very well filed a suit for the said Tahiliani 4 sa135-137.10.sxw relief. In any event, the cause of action arose during pendency of the suit and that also on account of interlocutory orders that were passed in the said suit. As already discussed herein above in so far as the claim of the plaintiff is concerned, no error could be found with the findings recorded by the learned appellate court. As already discussed herein above the claim of the plaintiffs regarding injunction had already been negated by the learned trial court in Regular Civil Suit No.983/82 which was affirmed by the appellate court in Regular Civil Appeal No.469/81. In that view of the matter, to allow the appellant to raise a ground which is sought to be raised at this stage would amount to perversity of justice in as much as the claim which had been negated by learned Courts on earlier occasion would be permitted to be reopened at this stage. In that view of the matter no perversity is found in the order passed by the Appellate Court and the said appeal also stands dismissed. 7. At this stage learned counsel for the appellant states that ad-interim relief which was granted by this Court should be continued for a period of eight weeks. From the record it appears that there is no such ad-interim order passed by this Court. Mr.Jamdar however fairly states that a statement on behalf of respondents was made that they would not proceed with the execution until further orders are passed by this Court. Learned counsel fairly states that for a period of four weeks from today respondents would not proceed with the execution. In that view of the matter no orders are necessary. 8. In view of disposal of the appeals, civil applications, if any, do not survive and the same are also disposed of.