IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.370 OF 2006. APPEAL NO.370 OF 2006. APPEAL NO.370 OF 2006. Bapusaheb Chimasaheb Naik-Nimbalkar ...Appellant Versus. Vijaysinha Kashinath Rajebhosale (since deceased) through his legal heirs and others ...Respondents Shri A.V.Anturkar i/by Shri V.S.Talkute for the Appellant. Shri R.M.Haridas h/f Shri P.N.Joshi for the Respondent No.2. Shri Prabhanjan Gujar for the Respondent Nos.3 to 6 and 8 and 9. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATE DATE DATE : 03rd MARCH, 2008. : 03rd MARCH, 2008. : 03rd MARCH, 2008. P.C.: P.C.: P.C.: 1. The submissions of the learned counsel appearing for the parties were heard on the last date. The learned counsel appearing for the appellants had tendered on record additional substantial questions of law alongwith a compilation. As submissions are already heard on the said questions, the appellants are granted a formal leave to amend memorandum of appeal for incorporating the said questions. 2. The Second Appeal is preferred by the original defendants. The respondents are the original plaintiffs. With a view to appreciate the submissions made by the learned counsel appearing for the appellants, it will be necessary to refer to the genealogy indicating relationship between the parties: : 2 : 2 : 2 : Jagadeorao (died in May 1928) ¦ ---------------------------------------- ¦ ¦ ¦ Bhagiratibai Gajarabai Kamlabai ¦ ¦ --------------------- ¦ ¦ ¦ ¦ Chimasaheb Housabai ¦ (Ori.Deft.) ¦ (died on 18.08.1982) ------------------------- ¦ ¦ ¦ ¦ Shankara/Bajajrao Anandibai --------------------- (died on 6.2.58) (died on 20.0.77) ¦ ¦ ¦ ¦ Bapusaheb ¦ ¦ ¦ (Appellant No.1) ¦ ¦ ¦ ¦ ¦ ¦ Vijayantdevi ¦ ¦ (Appellant No.2) ¦ ¦ ¦ ¦ Shakuntalabai ¦ (died on 01.10.1962) ¦ ¦ ¦ ------------------------------------------------------ ¦ ¦ ¦ ¦ Vijaysingh Ravindranath Nalini Shalini (Plaintiff) 3. The Second Appeal arises out of Regular Civil Suit No.165 of 1979 filed by the respondents-plaintiffs. The suit is filed by the respondents-plaintiffs for partition and separate possession of the share of the respondents. As reflected from the genealogy, the respondents-plaintiffs are the sons and daughters of deceased Anandibai. According to the case of the respondents the said Jagdevrao and his brother Parbatrao were having one half share in the suit property. According to the case of the respondents their mother was declared as the legal heir of Shakuntalabai as per : 3 : 3 : 3 : the decree in Regular Civil Suit No.96 of 1963. According to the case of the respondents as their mother Anandibai is held to be legal representative of deceased Shakuntalabai, their mother was entitled to share of deceased Shakuntalabai and accordingly the said respondents are entitled to said share. The respondents-plaintiffs have claimed one half share in the suit property. The suit was contested by the appellants by filing a written statement. It was contended that after the demise of Shakuntalabai the name of Chimasaheb (the predecessor of the appellants) was entered into revenue record and at no stage Anandibai raised any objection to the insertion of name of the said Chimasaheb and to the enjoyment of the property by Chimasaheb. A contention was raised that the suit was barred by Rule 2 of Order II of the Code of Civil Procedure, 1908. One more contention raised by the appellants is that for a period of 12 years prior to the institution of the suit neither the respondents nor their predecessor Anandibai was in possession in any portion of the suit property and therefore the suit was barred by limitation. 4. The learned trial Judge framed various issues including the issue of bar or limitation. All the relevant issues were answered in favour of the respondents-plaintiffs including the issue of : 4 : 4 : 4 : limitation. An appeal was preferred before the District Court by the present appellants. The appeal was dismissed by the District Court. 5. The submission of the learned counsel appearing for the appellants is that clause (b) of Article 65 of the Limitation Act, 1963 was applicable to the suit. His submission is that the if clause (b) of Article 65 is applied, it is obvious that the suit filed by the respondents was barred by limitation in as much as the said Shakuntalabai died on 01st October, 1962 and the present suit was filed on 04th July, 1979. He placed reliance on the decision of the Apex Court in the case of Jagat Ram Vs. Varinder Prakash (2006 (4) Maharashtra Law Journal Page 506). He submitted that the cause of action arose at the time of demise of Shakuntalabai and therefore the period of limitation will have to be treated as commenced from the said date of death in view of legal fiction created by clause (b) of Article 65 of the Limitation Act. He invited my attention to letters at Exhibits 38 and 39 allegedly written by Chimasaheb the (original defendant) to Ravindranath (second respondent/second plaintiff). He submitted that the said Ravindranath was acting as an advocate and legal adviser of the said Chimasaheb and therefore in view of the section 126 of the Indian Evidence Act, 1872, the said letters were in the nature of privileged : 5 : 5 : 5 : communications which could not have been read in evidence. He submitted that the document dated 18th January, 1957 at Exhibit 116 was not duly proved in accordance with law of evidence and in any event the same cannot be read in evidence as it purports to be an unregistered Deed of Partition. 6. I have carefully considered the submissions. From the perusal of the judgment of the Appellate Court it appears that the contention regarding bar of limitation was not canvassed before the District Court. Nevertheless as the trial Court has framed an issue on this aspect and has decided the same, I am considering the said contention. Firstly, it must be stated that Article 65 of the Limitation Act, 1963 is applicable to the suit for possession of immovable property based on title. On plain reading of the plaint filed by the respondents it is clear that the suit filed by the respondents was for partition and separate possession of the suit immovable property. It is therefore obvious that clause (b) of Article 65 will not have any application to the suit. If the appellants want to establish the plea of bar of limitation they will have to prove the case of ouster of Shakuntalabai and/or her successor Anandibai from the suit property and the period of limitation will start only from the date of ouster. Such case has not been made out by the : 6 : 6 : 6 : appellants. Therefore, there is no merit in the first submission of the learned counsel appearing for the appellants. The Apex Court in the case of Jagat Ram was not dealing with a case of suit for partition. The Apex Court was dealing with a suit based on title for declaration and possession. It is therefore not necessary to refer to the judgment of the Apex Court in the case of Jagat Ram. 7. My attention was invited the documents at Exhibits 38 and 39 which are the letters written by the second respondent to the original defendant Chimasaheb. I have perused the said letters at Exhibits 38 and 39. Form the genealogy which is not dispute it is obvious that the original defendant Chimasaheb and the second respondent are close relatives. The said fact is apparent from the language used in the said letters addressed by the deceased Chimasaheb to the second respondent. 8. Section 126 of the Indian Evidence Act is applicable where there is a communication made to an advocate in the course of and for the purpose of his employment as such advocate. On plain reading of both the said letters, it is not possible to accept the contention of the appellants that the said letters were addressed by Chimasaheb to the second respondent for the : 7 : 7 : 7 : purpose of alleged employment of the second respondent as his advocate. Apart from this fact, the aforesaid factual contention has not been raised before the Courts below in the manner in which it is raised in the Second Appeal. In so far as last submission regarding document at Exhibit 116 is concerned, it is apparent that the said submission was not canvassed before the first Appellate Court. However, in so far as the proof of the said document is concerned, there is a clear finding of fact recorded by the trial Court. In this behalf, it will be necessary to refer to paragraph No.10 of the judgment of the trial Court. It has been observed that it was postively pleaded by the appellants and it was admitted by the respondents that oral partition between the sons of Jagdevrao was effected on 18th January, 1957. 9. In view of the aforesaid discussion, it is obvious that no substantial question of law arises. There is no merit in the appeal and the same is accordingly dismissed. There will be no orders as to costs. Judge. Judge. Judge.