1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.346 OF 1988 Shripati Bala Kadam (deceased) through heirs and legal representatives 1a) Smt.Babai Pratap Kapase 1b) Shri Vijay Sarjerao Kadam 1c) Kum.Jyoti Sarjerao Kadam being minor through natural guardian Smt.Babai Pratap Kapase ..Appellants (Orig. Deft) V/s 1. Mahadeo Maruti Gurav since decesed by his heirs - 1A Parvati Mahadeo Gurav 1B Vijaykumar Mahadeo Gurav 1C Sunil Mahadeo Gurav 1D Lilabai Mahadeo Gurav 2. Shantabai Maruti Gurav .. Respondents (Orig.Plffs) Shri R.A.Thorat for Appellants Shri Anilkumar K. Patil for Respondents CORAM:S.R.SATHE,J. 2 DATED:1st March 2006 JUDGMENT JUDGMENT JUDGMENT :- 1. The appellant, original defendant in Regular Civil Suit NO.431 of 1975 has preferred this appeal against the judgment and order passed by the Court of the District Judge, Satara in Civil Appeal No.98 of 1984 whereby, the order passed by the trial Court declaring that the sale deed executed in favour of the defendant is not legal in respect of plaintiff’s half share and directing the defendant to hand over the possession of half share to the plaintiff was confirmed and the appeal was dismissed. For the sake of convenience, hereafter the parties shall be referred to as the plaintiff and defendant. 2. Brief facts giving rise to this appeal are as under : . The suit land bearing Survey No.494/1 new number as Block No.1196 admeasuring 5 Acres 15 gunthas situated at Atit, Taluka Satara was owned by one Sitaram Nagu Gurav. He was also having some other lands. All those lands were his ancestral lands. Sitaram died on 1-1-1931 leaving behind village Rangubai and 2 sons viz. Maruti and Shankar. Maruti died on 19-11-1941 during his minority, leaving behind him his widow Shantabai. After 3 the death of Sitaram the name of Maruti, the elder son of Sitaram was mutated as a manger of the joint family and he was shown under guardianship of his mother Rangubai. After the death of Maruti, the name of Shankar came to be shown as manager of joint Hindu family. He was also minor. On 15-3-1956n Sitabai adopted Mahadeo (original plaintiff no.1) as per the necessary adoption ceremonies. Incidently, Mahadeo happened to be the brother of Rangubai, before the adoption. 3. Maruti original plaintiff no.1 died during the pendency of the suit on 16-6-1977 and his heirs have been brought on record. They are plaintiffs nos.1A to 1D. 4. During his life time Shankar executed sale deed of the suit land in favour of defendant on 5-2-1960 for consideration of Rs.2,500/- and accordingly mutation entry No.3 was effected. Shankar died on 26-5-1964. According to the plaintiff, as a result of adoption, Mahadeo had become co-parcner with Shankar. Since the year 1957 Shankar had become insane and was not in a position to know of his own acts and defendant by taking undue advantage of such position of Shankar got the sale deed executed in his favour. Thus according to the plaintiff Shankar had no legal right to execute any sale deed in respect of the entire land. He, therefore, 4 issued notice to the defendant and called upon him to hand over the possession. However, the defendant took a stand that he was tenant in the suit property. Naturally, Mahadeo, original plaintiff filed an application under Section 70(b) of Bombay Tenancy and Agricultural Lands Act (hereafter referred to as Bombay Tenancy Act) for declaration that defendant is not a tenant. Finally, the Maharashtra Revenue Tribunal by its judgment dated 7-3-1972 held that defendant is not a tenant and he is a trespasser. Plaintiff, therefore, filed the present suit on 18-12-1975 for possession of the entire land and in the alternative for partition and separate possession of his half share. 5. The defendant filed his written statement at Exh.12 and denied adoption and its validity. He also contended that Shankar was not insane and after the death of Maruti, he (Shankar) became the manager and he was under the guardianship of his mother Gangubai. She died in 1959 due to Asthma. In order to meet the expenses of her illness Shankar had incurred some hand loans. In order to satisfy the debts and for maintenance of the family, he executed the sale deed. The defendant therefore contended that sale deed was for the legal necessity and benefit of the family and as such binding on the plaintiffs. The defendant also contended that plaintiff had issued his notice for handing over the possession of the suit land but he had refused and thus 5 since 5-2-1960 plaintiff was aware that the defendant is in possession of the suit land. He, therefore, contended that by virtue of adverse possession he has become owner of the suit land and plaintiff’s suit is barred by law of limitation. 6. On these pleadings the learned trial Judge framed issues and after considering evidence adduced by both the parties, the learned trial Judge came to the conclusion that the plaintiff is validly adopted son of Maruti and was a coparcner with Shankar. He also held that defendant failed to show that there was any legal necessity for Shankar to sell the suit property. At the same time he also held that the plaintiff failed to prove that shankar was insane. According to the trial Judge, Shankar had no right to sell half share in the suit property owned by the plaintiff. He therefore directed that the defendants should hand over half share of the suit property to the plaintiff. 7. Being aggrieved by the said order the defendant filed Civil Appeal No.98 of 1984. After hearing the arguments of both the learned Advocates the first appellate court came to the conclusion that the plaintiff was validly adopted by Shantabai and defendant failed to prove that Shankar was the manager of joint Hindu family and in his capacity as a manager the land was sold to defendant for legal necessity. the first 6 Appellate court also held that suit is not barred by law of limitation. He therefore confirmed the order passed by the learned trial Judge and dismissed the appeal as well as cross objection filed by the plaintiff. 8. The defendant has challenged the above order in this second appeal. While admitting the appeal the court (Coram:Agarwal,J) passed the following order: "Ground (b) and (h) raise substantial questions of law. Admit." . The said grounds are as under : "b) Whether the provisions of Section 14 of the Limitation Act, 1963 are attracted and/or are applicable to the facts pleaded by the Respondents for execution of the period required by the deceased plaintiff for prosecuting his application (Exh.103) filed on 30th March 1960 under Section 70(b) of the Bombay tenancy and Agricultural Lands Act, 1948 against the Appellant or a declaration that the appellant is not a tenant in respect of the suit land under the said Act and also for recovery of possession of the suit land. 7 h) When there is no averment in the plaint that the disputed sale deed is invalid for want of legal necessity, whether both the learned lower Courts have erred in law in framing an issue regarding the legal necessity and casting the burden of proof of the said issue on the Appellant". 9. In this appeal before me, Shri Thorat, learned Advocate for the defendant has urged only two points. Firstly, he submitted that the learned first appellate court has wrongly held that provisions of Section 14 of the Limitation Act are applicable and as such the suit is in time. According to him, the subject matter involved in the present suit was not the subject matter before the tenancy authorities, though it is correct that the plaintiff had filed an application under Section 70(b) of Bombay Tenancy Act, as defendant after issuance of notice to him had taken a stand that he is a tenant. The said proceedings will not help the plaintiff to bring the present suit in time. In order to find out whether there is any sustenance in the argument advanced by the learned advocate for the defendant, it would be worthwhile to see what Section 14 of the Limitation Act says. . It runs as follows :- 14. Exclusion of time of proceeding bona 8 fide in court without jurisdiction - (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (2) In computing the period of limitation for any application, the time during which the application has been [prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil 9 Procedure, 1908(5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature. 10. According to Section 14, the period during which the plaintiff was prosecuting with due diligence entire civil proceedings, whether in court of first instant or in appeal against the defendants shall have to be excluded. Admittedly, in the instant case the tenancy proceedings were pending between the parties till 1972. Shri Thorat, learned Advocate for defendants, canvased before me that proceedings before Mamlatdar or M.R.T. cannot be considered as a "proceeding before court" for the purpose of Section 14. However, I for one do not agree with this proposition. If a statute confers exclusive jurisdiction on certain aspects then revenue courts can be considered as the courts for the purpose of Section 14. Even if suit was to be filed for possession at that time, the issue would have arisen as to whether defendant is a tenant or not and then in that event it would have become necessary to refer the said issue to the competent authority and the said findings of the competent authority would have been binding on 10 the civil court. So, for evicting the defendants from the suit land it became necessary for the plaintiff to meet out the contention of the defendant that he was a tenant. He therefore filed an application under Section 70(b) of Bombay Tenancy Act. 11. In the instant case if we see the original application made by the plaintiff in Tenancy Court it is very clear that the said application was made under Section 70B as well as Section 29(1) of B.T. and A.L.Act, 1948. In order to show that provisions of Section 14 of the Limitation Act are application to the said proceedings the learned Advocate for the Respondent has placed reliance on a case Dinkarrao Deshmukh V Dinkarrao Deshmukh V Dinkarrao Deshmukh V Mahadeo Mohite 1991(2) BCR 670 Mahadeo Mohite 1991(2) BCR 670 Mahadeo Mohite 1991(2) BCR 670 wherein this Court has held that Section 14 of the Limitation Act is applicable to the application or proceedings filed under Tenancy Act. So, in view of this position there is no substance in the contention raised by the defendant that proceedings before tenancy authority cannot be treated as a proceeding in "Court" as contemplated under Section 14 of the Limitation Act. 12. In the instant case, admittedly, the application under Section 70 and 29 was made by the Appellant in the year 1960. There is no dispute that the matter ended in M.R.T. on 6-3-1972 when the defendants’ possession was held as a trespasser, So, the present suit is obviously 11 in time, having regard to the provisions of Section 14 of the Limitation Act. 13. It is true that in order to have benefit under Section 14 of the Limitation Act, it is necessary to see as to whether proceedings are relating to the same matter in issue and is prosecuted in good faith. In the instant case, from perusal of the application filed by the plaintiff before Tenancy authority it is very clear that he had also sought possession of the suit property from the defendant as defendant had taken the contention that he is a tenant. So, it cannot be said that matter in issue in the present case was not the matter in issue in the proceedings filed by the plaintiff before the Tenancy court. So, there is no substance in the argument advanced by the learned Advocate for the defendants in this behalf. 14. Shri Thorat, learned Advocate for the defendant strenuously argued before that in the instant case, the plaintiff has nowhere stated that the property in question was sold by Shankar for legal necessities. So, there was no need to frame any issue to that effect and in any event there was no need to cast burden upon the defendants to prove that Shankar had sold the suit property for legal necessities. However, while considering this aspect, one has to take into consideration the pleadings of the parties. In the 12 instant case the plaintiff had specifically pleaded that Shankar was not the Karta of the joint family and therefore he had no right to execute the sale deed of the entire land including the plaintiff’s share. As against this, the defendant specifically contended that Shankar sold the suit property to pay off family debts and for legal necessities of the joint family and as such deed is binding on the plaintiff. Thus, we find that when the defendant wanted to protect the property on such contention, the learned trial Judge rightly framed the issue as to whether the defendant has proved that Shankar has sold the suit property for legal necessity. In the instant case, from the evidence on record it is very clear that there is nothing to indicate that Shankar was in fact the karta of the joint family. Naturally, he had no right to dispose of the share of the plaintiff. Besides this, merely because in the sale deed it is mentioned that for repaying loan and meet household expenses property is sold, it cannot be said that there was actual such legal necessity. On the contrary the defendant has failed to adduce any evidence worth the named to show that there was legal necessity. So, finding recorded by both the Courts below on this point cannot be said to be wrong or perverse on the contrary the is unassailable. In view of the above, the concurrent findings of fact given by both the courts below are correct. Considering the entire evidence on record and position of law, it is very clear that the 13 trial Court has rightly decreed the suit in plaintiff’s favour. . In this view of the matter, there is no substance in the appeal. The appeal is dismissed with costs. (S.R.SATHE,J.)