1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 520 OF 1991 1. Ganikhan Nanhekhan R/o. Dhakalgaon, Tq. Ambad, Dist. Jalna. 2. Nanhekhan s/o. Ismail Khan (Appeal abated against appellant No. 2 vide Addl. Registrar's Order dated 3.6.1993) ....Appellants. Versus 1. Gautam s/o. Bhanudas Dehede, 2. Ramesh s/o. Bhanudas Dehede, 3. Annapurnabai w/o. Bhanudas Dhehede, 4. Bhanudas s/o. Gangaram Dehede, All R/o. Dhakalgaon, Tq. Ambad, Dist. Jalna. ....Respondents. Shri. R.S. Deshmukh, Advocate for the appellants. Shri. P.V. Mandlik, Advocate for the respondent Nos. 1 and 3. CORAM : R.K. DESHPANDE, JJ. DATE : 11th September, 2009 ORAL JUDGMENT : 1. This is appeal by the original defendant Nos. 2 and 3, who have purchased the land to the extent of 3 Hectors 73 R. (9 acres 12 guntas), 2 out of old survey No. 112/2 and 112/4 (new Gat No. 281), situated at village Dhakalgaon, Tal. Ambad from the original defendant No. 1, who was the father of the plaintiffs and respondent Nos. 1 to 3 herein. (The parties shall be hereinafter referred to as per their original status as "plaintiffs" and "defendants" in Regular Civil Suit No. 132/1981) 2. The plaintiffs have filed Regular Civil Suit No. 132/1981, claiming partition and possession of the land Gat No. 281 (survey Nos. 112/2 and 112/4) admeasuring 3 Hectors 73 R., divided in two portions shown in the map in the plaint, situated at village Dhakalgaon, Tal. Ambad. The plaintiff claimed that the suit property was ancestral property, which has been inherited by the original defendant No. 1, who was the father of the plaintiff. The plaintiff claimed that they have share in the said property and hence, claimed the delivery of possession to the extent of 3/4 share in the suit land. The suit against the defendant No. 1 proceeded exparte. The defendant Nos. 2 and 3 filed their common written statement, alleging that they were put in possession of survey No. 112/4 on 19.5.1967 and on survey No. 112/2 on 21.11.1967, pursuant to an agreement with the defendant No. 1. The defendant Nos. 2 and 3 further claimed that they have purchased the suit property in question by sale deeds dated 25.9.1967 (Exh. 56) and 28.4.1968 (Exh. 57) for valuable consideration. The defendants claimed that the suit is filed beyond the period of 12 years and hence, the same is barred by the limitation. It is further alleged that the plaintiff No. 1 was of 25 years of age when the 3 suit was filed and the age of plaintiff No. 2 was more than one which is shown in the plaint. 3. The Trial Court framed issues. The parties led oral as well as the documentary evidence. The Trial Court recorded a findings that the suit property was the ancestral property of the defendant No. 1 and that the defendant No. 1 sold the same to the defendant Nos. 2 and 3 without their being any legal necessity, when the plaintiffs were minors. On the question of limitation, it was held that the plaintiff No. 2 was born on 1.9.1967 and he was about 6 years of age when the alleged agreement took place. It was further held that the plaintiff No. 2 was aged about 20 years at the time of filing of suit and the suit was filed by him within three years and the suit was, therefore, held to be within a period of limitation, on the basis of provisions of section 7 of the Indian Limitation Act. The Trial Court decreed the suit by its judgment and decree dated 11.9.1984 and directed the defendant Nos. 2 and 3 to deliver the possession of the suit property. The Trial Court further declared that defendant No. 2 is also entitled to declaration that he has acquired undivided interest of the defendant No. 1 in the suit property and that he is entitled to take proceedings to have his interest ascertained by a partition. 4. On appeal being preferred by the defendants, the Appellate Court confirmed the findings recorded by the Trial Court by holding that the 4 suit property was the ancestral property of the defendant No. 1 and it was not sold out for legal necessity or for payment of debt. It was held that the defendant No. 2 did not acquire the title over the suit land by way of adverse possession and the suit was not barred by the limitation. The Appellate Court, thus, dismissed the Regular Civil Appeal No. 137/1984 by its judgment and order dated 26.6.1991. However, the Appellate Court modified the decree and the operative part of the same is reproduced below :- "O R D E R The appeal stand dismissed with costs. The order by the learned trial Judge is modified as follows : The defendants Nos. 2 and 3 do deliver the possession of the suit lands Survey Nos. 112/2 and 112/4 gat No. 281 of village Dhakalgaon to the plaintiffs. Defendant No. 2 is entitled to a declaration that he has acquired undivided interest of defendant No. 1 in the suit land and he is entitled to take proceedings to have his interest ascertained by partition. Defendant No. 2 shall file a suit for general partition against the present plaintiffs and defendant No. 1 for separate possession of the defendant No. 1 is share in the suit lands, within 4 months from the date of the order i.e. on or before 30.10.1991. The execution of the decree namely restoring possession of suit lands to plaintiffs is stayed till 31.10.1991. Plaintiffs are entitled to execute the decree and recover possession of the suit land, on failure of defendant No. 3 filing a suit for general partition on or before 31/10/1991. Plaintiff's are entitled to past and future mesne 5 profits and enquiry of which shall be held under Order 20, Rule C.P.C." 5. This matter was admitted on 26.11.1991 without framing any substantial question of law. The learned counsel for the appellant contended that following three substantial questions of law arise out of the findings recorded by the Courts below :- (i) Whether the suit filed by the plaintiffs was within a period of limitation ? (ii) Whether the Courts below were right in relying upon Exh. 34, the school leaving certificate, to conclude that the plaintiff No. 2 was minor on the date of expiry of limitation ? (iii) Whether the suit simplicitor for possession without challenging the alienation was maintainable ? 6. The first two questions raised by the learned counsel for the appellant can be dealt with together. In this respect, it is the contention of the learned counsel for the appellant that it is the suit for possession, which should have been filed within a period of 12 years from the date of delivery of possession to the defendant Nos. 2 and 3. According to the learned counsel, the possession of the suit property survey No. 112/4 was delivered on 19.5.1967, whereas the possession of survey No. 112/2 was delivered on 21.9.1967. The period of 12 years expired in the year 6 1979 i.e. on 19.05.1979. However, the instant suit was filed on 1.7.1979 which was beyond the period of 12 years. The learned counsel further urged that there is no evidence produced on record by the plaintiffs to show that on the date when the limitation expired, any of them was minor. According to the learned counsel, the reliance placed by the Trial Court on Exh. 34 i.e. school leaving certificate, to determine the age of the plaintiff No. 2, was not correct as the said document has no evidenciary value to conclusively determine the age of the plaintiff. For the proposition that, such certificate is not admissible in evidence, he relied upon the decisions of the Apex Court reported in AIR 2006 SUPEREME COURT 2157, Ravinder Singh Gorkhi V. State of U.P, AIR 2004 SUPREME COURT 230, Sushil Kumar Vs. Rakesh Kumar and AIR 1988 SUPREME COURT 1796, Birad Mal Singhvi Vs. Anand Purohit. According to the learned counsel, the Courts below ought to have dismissed the suit as it is barred by limitation. 6. On the contrary, the learned senior counsel Shri. Mandlik assisted by Shri. N.K. Tungar, urged that it was the suit for partition and separate possession and therefore, the question of limitation was in fact not at all involved. According to the learned senior counsel, it is only upon the Trial Court determining the share of the plaintiff in the suit property, in a suit for partition, that the plaintiffs would be entitled to get possession. The learned senior counsel further urged that the Courts below have determined the share of the plaintiff No. 2 in the suit property and it is 7 left upon for him to take appropriate proceedings to have his interest ascertained in the property. The learned counsel urged that the question of claiming relief to set aside the sale effected vide Exhs. 56 and 57 does not arise as the respondent Nos. 2 and 3 would step in to the shoes of defendant No. 1. 7. The finding recorded by the Courts below is that the property is ancestral property of the defendant No. 1 and that the plaintiffs have share in it, has not been assailed. Further, the finding recorded by the Courts below is that the defendants have failed to establish that the sale vide Exhs. 56 and 57 were for the legal necessity, has also not been assailed. The findings of facts in respect thereof, cannot therefore to be touched. The only point for consideration, as urged by the learned counsel for the appellant, is regarding the limitation and the maintainability of the suit. The Courts below have recorded a finding on the question of limitation by holding that the suit filed was within limitation. Similarly, the contention of the respondents that the suit for possession is not maintainable, has also been rejected. 8. Although the Trial Court relied upon the provisions of section 7 of the Limitation Act, in my view, the question of limitation would not arise as it is a suit for partition. Similarly the question of challenging the alienation in favour of defendants vide Exhs. 56 and 57 also does not arise. What the plaintiffs have claimed is, their share in the ancestral 8 property, which has been granted by the Trial Court and consequently, the possession of the suit property. In view of this, none of the questions urged by the learned counsel for the appellant, arise out of the findings recorded by the Courts below. No substantial question of law arise in the present case. 9. The Appellate Court, while modifying the decree, has further directed the defendant No. 2 to file a suit for general partition against the present plaintiffs and the defendant No. 1 for separate possession of the share of defendant No. 1 in the suit lands, within a period of four months from the date of the order i.e. on or before 30.10.1991. Till then the Appellate Court has also stayed the execution of the decree and recover possession of the suit land, on failure of defendant No. 2 filing a suit for general partition on or before 31.10.1991. Such a course, in my view is not at all permissible in law. Hence, the decree passed by the Trial Court is required to be restored without any modification, as has been ordered by the Appellate Court. The appeal is thus, partly allowed to the aforesaid extent by restoring the decree passed by the Trial Court. There shall be no order as to costs. [ R.K. DESHPANDE, J. ] ssc/sa520.91