1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR Second Appeal No. 395 of 2009 (Subhadrabai Bajirao Dhote and others ...VERSUS... Rukmabai Keshav Pal & others) =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mr. V.N.Morande, Advocate for Appellants Mr. M.P.Khajanchi, Advocate for the respondents nos.1,2,5,6&7. C ORAM : Smt.Vasanti A. Naik, J. DATED : 25th March, 2010. Heard Mr. V.N.Morande, the learned counsel for the appellants and Mr. M.P.Khajanchi, the learned counsel for the respondents no.1,2,5,6 & 7. The appellants are the original plaintiffs. The suit was filed by the plaintiffs for cancellation of Sale Deed, executed by one Smt. Girjabai in favour of original defendants No.1 & 4, on 30.8.1988. The defendants no.1 and 4 are the daughter and grand-daughter of Smt. Girjabai, who died in the year 1995. It was the case of the plaintiffs that one Yeshya was the owner of field admeasuring 4.50 hectares. Yeshya died in the year 1940. Yeshya had two sons namely, Bonya and Urkuda. The plaintiffs are the legal heirs of Urkuda and Bonya. It was pleaded by the plaintiffs that in the year 1956, there was a partition of 4.50 hectares of land between Bonya, Urkuda and Smt.Girjabai. The plaintiffs pleaded that Smt. Girjabai was a keep of Yeshya 2 and 1/3rd property owned by Yeshya was shown in her share so as to safeguard her interest. It was the case of the plaintiffs that 1/3rd property was shown in the name of Smt.Girjabai towards maintenance. The plaintiffs pleaded that Smt. Girjabai, however, by the Sale Deed dated 30/8/1988, sold 1.80 hectare of land to the defendants no.1 and 4, though she was not the absolute owner of that property. The plaintiffs claimed to be the absolute owners of the entire property admeasuring 4.50 hectares. The defendants no.1 and 4 denied the claim of the plaintiffs and pleaded that Smt. Girjabai was not the keep of Yeshya, but she was the wife of Yeshya, who survived him and died in the year 1995. According to the defendants, the suit filed by the plaintiffs was barred by limitation as the Sale Deed was executed on 30/8/1988 and the suit was filed on 02/11/1996. The defendants pleaded that Smt. Girjabai was the absolute owner of 1.80 hectare of land and had every right to sell the same to the defendants no.1 and 4 by the Sale Deed dated 30/8/1988. On an appreciation of the evidence on record, both the courts concurrently held that Smt. Girjabai was the widow of Yeshya and was the owner of 1.80 hectare of land, which she received in the partition in the year 1956. According to both the courts, the plaintiffs had not succeeded in proving that Smt. Girjabai illegally disposed of the suit land by the Sale Deed dated 30/8/1988 in favour of the defendants no.1 and 4. Both the courts held that the plaintiffs had further failed in proving that they were in possession of the suit land. The courts also held 3 that the suit filed by the plaintiffs was barred by limitation. Mr. Morande, the learned counsel for the appellants submitted that the courts below committed an error in holding that the suit filed by the plaintiffs was barred by limitation as it was admitted by the plaintiff in his cross-examination that he was aware of the execution of Sale Deed dated 30/8/1988 in the same year. According to the learned counsel for the appellants, there is no admission by the plaintiff no.1 to the aforesaid fact. The learned counsel for the appellants then submitted that the findings recorded by the courts on the other issues are also incorrect and the judgments passed by both the courts are liable to be set aside. On hearing the learned counsel for the appellants and respondents No.1,2,5,6 & 7, it appears that the Second Appeal is liable to be dismissed, though, on a perusal of the cross-examination of the plaintiff No.1, it appears that there is no admission by the plaintiff no.1 that he had knowledge about the sale transaction in the year 1988 and the issue of limitation may be answered in favour of the plaintiffs/appellants. It appears from a perusal of the judgments that both the courts have rightly appreciated the evidence tendered by the parties to hold that Smt. Girjabai being the widow of Yeshya, was the absolute owner of 1.80 Hectares of land and could have sold the same to the defendants no.1 and 4 by the Sale Deed dated 30/8/1988. Even if it is held that the suit filed by the plaintiffs was not barred by the provisions of 4 the Limitation Act, the other findings recorded by both the courts are based on a proper appreciation of the evidence on record. Both the courts have held that the plaintiffs had themselves admitted that there was a partition amongst Urkuda, Bonya and Smt. Girjabai in the year 1956 and after the coming into force the Hindu Succession Act, 1956, the limited interest of Smt. Girjabai, if any, blossomed into the absolute ownership in the suit property. The courts have further held on a proper appreciation of the evidence that the plaintiffs have not succeeded in proving that they were in possession of the suit property from 30/8/1988 till the institution of the suit in the year 1996 and the Sale Deed dated 30/8/1988 was not acted upon. The Courts also observed that the suit property was mutated in the name of defendants no.1 and 4 since 1988 i.e. after execution of the Sale Deed. The findings recorded by both the courts on the aforesaid issues are pure findings of facts based on a proper appreciation of the material evidence on record. Hence, even if it is held that the suit filed by the plaintiffs was not barred by limitation, the plaintiffs were not entitled to a decree for cancellation of Sale Deed dated 30/8/1988. In view of the findings recorded by both the courts on other issues, since no substantial question of law arises for consideration in this Second Appeal, the same is dismissed with no order as to costs. JUDGE. 5 Diwale