1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No.51/2011 ( Mahadeo s/o Tukaramji Belsare & others ..Vs.. Suresh Marotrao Belsare & others ) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. Manoj Sable, Adv. for appellants. CORAM : S.B. DESHMUKH J. DATE : 23.3.2 011 . 1. Heard Mr. Manoj Sable, learned Advocate for the appellants. 2. This second appeal is filed by the original defendants in Regular Civil Suit No.2/1999. There were two civil suits decided together by consent of the parties, by the trial Court, those were Regular Civil Suit No.2/1999 (this suit is relevant for deciding present second appeal) and Regular Civil Suit No.44/1999. I am not giving details of the Civil Suit No. 44/1999, since it has no concern with this second appeal. The respondent in second appeal were plaintiffs in R.C.S. No. 2/1999. The parties hereinafter are referred to their status as that of in R.C.S. No.2/1999, as plaintiffs and defendants. The plaintiffs have filed R.C.S. No.2/1999 on 5th of January 1999 against the defendants for partition and separate 2 possession. Learned Advocate appearing for the defendants, took me to the pleadings, copies of documents which are on record. Copy of the plaint in R.C.S. No.2/1999 (Annexure-D) shows that subject matter of the present appeal is suit house situated in the village Warud, Taluka Warud, District Amravati. There is no dispute amongst the parties regarding description of the suit house. Learned Advocate for the defendants took me to the genealogy, mentioned in para 9 of the plaint. It is not in dispute that one Tukaram Belsare was a common ancestral of the parties. Said Tukaram was having four sons namely Marotrao, Namdeo, Mahadeo and Sampat. Amongst these four sons, Marotrao is no more. Plaintiff nos.1 to 5 are are grand-son of Tukaram and plaintiff no.6 is son. Mahadeo one of the son of Tukaram, is no more and his legal heirs are defendants in this suit. Sampat, son of Tukaram, is no more and was also not married. The relationship amongst the parties is not disputed. 3. In response to the suit summons, defendants entered appearance and filed their written statement thereby denying the plaint allegations. It is contended by the defendants that parties by the unregistered document have partitioned the suit house during the life time of Tukaram and the suit is not filed within a period of limitation. The trial Court after considering the pleadings of the parties, framed issues, page 8 3 of the judgment. There were 7 issues framed and answered by the trial Court. Mr. Sable, learned Advocate for the appellant, points out the issue regarding limitation i.e. issue no.4 and findings in affirmative against the defendants. In relation to pleadings of the defendants that partition had taken place in the year 1955, i.e. during the life time of Tukaram, issue no.2 was framed and the findings is recorded against the defendants. Mr. Sable, learned Advocate for the appellant, fairly concedes that said document was not exhibited during the trial. Unexhibited document obviously cannot be read in evidence and considered by any Court of Law. While recording findings on the issue no. 2, trial Court has considered oral evidence led on behalf of the defendants. 4. Learned Advocate appearing for the defendants took me to para 16 to 20 of the judgment of trial Court. In para 16 trial Court has referred to evidence of Ramrao (D.W.2) D.W. Shaikh Majju (D.W.3), witnesses examined on behalf of the defendants. Their evidence is considered by the trial Court, however, discarded in relation to partition deed Exh.63 with which we have no concern i.e. the document which was brought on record by the plaintiffs and strongly relied upon. Para 17 of the judgment of trial Court makes a reference to Will deed Exh. 46, which relates to another house property which is not suit 4 house. That discussion also is not related to the present defendants. In para 20 of the judgment the trial court has considered the status or character of the property owned by deceased Tukaram. Learned trial Court arrived at a conclusion that it was self acquired property, Tukaram died intestate and said property thereafter can be said to be turn out to be ancestral property/joint family property of plaintiffs and defendant no.1. With the assistance of learned Advocate for the defendants, I have considered the findings of the trial Court. It has been concluded that suit filed by the plaintiffs was within limitation. Learned Advocate for defendants took me to Article 110 of the Limitation Act. He submitted that date of death of Tukaram i.e. 25th of October 1980 is relevant for deciding whether the suit is filed within the period of 12 years from the date of death of Tukaram, common ancestor of the plaintiffs and the defendants. Admittedly, the suit is not filed within 12 years from the date of death of Tukaram. 5. Relevant question is at what point of time the period of limitation started for plaintiffs to approach the Court with a prayer for partition and separate possession for their share. Article 110, makes mention of character of the property as joint family property and exclusion of a person who seeks 5 enforcement of his right for share of his property. These two aspects are important from the view point of the person who is seeking enforcement of his right. This exclusion, when it is known or perceived by the plaintiffs is more important, which creates cause of action for the plaintiffs and the point of time which is relevant for counting the period of limitation. If Article 110 is read in its entirety, in the facts of the present case it cannot be said that the findings recorded by the learned trial Court in para 20 of its judgment is perverse or without evidence on record. Death of Tukaram may be relevant circumstance relating to parties but then that date cannot be accepted or taken as date from which the limitation begins for filing the suit for partition. If members of Hindu Joint Family are happily staying together and there is no dispute amongst themselves, there is no occasion or cause of action for any of its Member to seek a partition of his separate share and possession of the property. In the facts of the case in hand if defendants intent to say that plaintiffs have been excluded from the joint family property then they have to make specific pleadings and substantiate it by leading cogent evidence. In that circumstances of the case, ouster can be considered when it is pleaded and supported by the evidence. 6. From the perusal of the judgment of the first 6 Appellate Court it appears that the point of limitation was argued before the first Appellate Court also. Such points framed by the first Appellate Court are in para 8 of the judgment. About four points for determination have been framed. Findings starts from para 9 of the judgment. The issue whether the suit was within limitation, there is a discussion about evidence and submissions of the parties in para 14 of the judgment. Date of death of Tukaram i.e. 25th October 1989, seems to be incorrectly written by the first Appellate Court instead of 25th of October 1980 in this para. The date of death of Tukaram i.e. 25th of October 1980, as pointed out by learned Advocate for the defendants may be taken as correct. It appears that the first Appellate Court has considered the issuance of notice dated 26th of November 1996 and date of institution of the suit and appeal. First Appellate Court has arrived at a conclusion that suit for partition was filed within a period of limitation. First Appellate Court concurred with the findings recorded by the trial Court. 7. The question of limitation is a mixed question of facts and law. Mr. Sable, learned Advocate for the appellant, relied on the judgment in the case of Chhabubhai Balkrishna Sutar and another V/s. Panchan Ladha Savala, deceased through Kuvarbai P. Savala and others reported in 2010 (5) Mh.L.J.885. 7 Mr. Sable, learned Advocate for the appellant, fairly concedes that learned Single Bench of this Court has recorded findings on the basis of evidence of witnesses examined on behalf of the plaintiffs. They have admitted that ouster of plaintiffs from the suit property in 1954 and date of institution of the suit was in the year 1972. Obviously, in the facts and circumstances of that case, suit was barred by limitation. I have considered the facts of the cited judgment and facts brought on record in the present case. The ratio of the Report does not apply to the present case. With the assistance of learned Advocate for the appellant, I have gone through the pleadings and material brought on record and judgment of both Courts along with Article 110 of the Limitation Act. The findings regarding the period of limitation, recorded by the trial Court, is legal, proper and based on the adequate material on record and has been confirmed by the first Appellate Court. 8. In my view, no substantial question of law is involved for admission of this appeal. The second appeal is, therefore, dismissed with no order as to costs. JUDGE Tambaskar.