( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 142 OF 1989 1. Yamunabai Purushottam Deogirikar 2. Chandrakant Purushottam Deogirikar 3. Sulbha Shrikrishna Landge 4. Prakash Purushottam Deogirikar APPELLANTS VERSUS 1. Mathurabai Nilkanth Choudhari 2. Nilkanth Kashinath Choudhari 3. Maruti Madhav Pathak 4. Gorkha Maruti Pathak 5. Nivrutti Maruti Pathak 6. Mahadu Bala Dhadge Since deceaed, by L.Rs. i) Smt. Dewoobai Mahadu Dhadge ii) Mr. Bhaurao Mahadu Dhadge Both residing at Najik-Chincholi, post Bhende Factory, Tq. Newasa, District Ahmednagar. 7. Smt. Vithabai Kondiram Gade 8. Kausalya Bhausaheb Chavare 9. Chandrakant Bhausaheb Chavare, minor through his guardian Mohan Eknath Chavare. 10. Bhausaheb Eknath Chavare 11. Balasaheb Sopan Kolte, minor through his major guardian Dyandeo Gulchand Kolte RESPONDENTS ..... Mr. R.N. Dhorde, advocate with Mr. R.L. Kute, advocate, for the appellants. Mr. P.M. Shah, Senior Counsel, instructed by Mr. Mukul ( 2 ) Kulkarni, advocate for respondents No. 8, 9 and 11. None for other respondents. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE OF JUDGEMENT RESERVED : 15th June, 2009] [DATE OF JUDGEMENT PRONOUNCED : 3rd July, 2009] JUDGEMENT : 1. Challenge in this appeal is to judgement and order rendered by 3rd Additional District Judge, Ahmednagar, in Regular Civil Appeal No. 350 of 1985 whereby and whereunder judgement of dismissal of suit (R.C.S. No. 270/1978) by the Civil Judge (J.D.), Newasa, came to be reversed. The trial Court decreed the suit whereas the first Appellate Court dismissed the same. 2. The litigation has a chequered history. The parties litigated in various proceedings and some of the suits and proceedings are still pending. The initial disputes sparked off in the early months of 1968. ( 3 ) 3. The following pedigree table is uncontroverted. Sitabai = Govind Appacharya Deogirikar = Yamunabai (Ist wife) (Died on 15-4-1966) (IInd wife) | (Adoptive mother) | (Died on 6-1-1963) | -------------------------- | | Ramchandra Purushottam = Yamunabai (Died in 1917) (Adopted on 8-4-1940 (wife of | (Died on 1-2-1976) Purushottam) | | (plaintiff No. 1) | | | | | -------------------------------- Mathurabai = Nilkanth | | | (Deft.No.1) (Deft.No.2) Chandrakant Sulbha Prakash (Wife of (Pltf.No.2) (Pltf.No.3) (Pltf.No.4) Deft.No.2) 4. The property in dispute comprises of three (3) agricultural lands bearing Gat No. 136, admeasuring 10 hectares 19 Ares, called `bandhani’, Gat No. 138, admeasuring 3 hectares 24 Ares, called `belacha mala’ and `pandhari’ and Gat No. 139, admeasuring 1 hectare 17 Ares, called `kapili’. These lands are situated at village Najik-Chincholi under Newasa Tahsil, District Ahmednagar. The land Gat No. 138 is consolidated after amalgamation of old survey Nos. 51 and 50 called `belacha mala’ and `pandhari’, respectively. Land Gat No. 139 is consolidated from old survey No. 71 called ( 4 ) `kapili’ and land Gat No. 136 is consolidated from old survey No. 52/A called `bandhani’. These lands would be referred to hereinafter as the suit land No. I, II and III, respectively. 5. Indisputably, the suit lands were originally held by deceased Govindappacharya as his ancestral properties. The appellants are original plaintiffs of the suit (R.C.S. No. 270/1978. They are the members of the branch of deceased Purushottam, who was adoptive son of Govindappacharya and Yamunabai. The members of branch of predeceased son of deceased Govindappacharya, namely, Ramchandra were the original defendants No. 1 and 2 in the suit. The remaining respondents are subsequent purchasers of some of the suit properties. 6. Briefly stated, the plaintiffs’ case before the trial Court was that deceased Purushottam was the sole surviving coparcener of the Hindu joint family after demise of Govindappacharya. He acquired all the rights and became exclusive owner of the suit lands No. I to ( 5 ) III. In his old age, deceased Govindappacharya was allured by the defendants No. 1 and 2 to stay with them. He was blind and feeble due to the oldage. The defendants No. 1 and 2 took undue advantage of the physical and mental disability of Govindappacharya and got the suit lands No. I to III transferred in name of Nilkanth i.e. Defendant No. 2. Somewhere after death of Govindappacharya, a notice was received by them (plaintiffs) on an application filed by the defendants No. 1 and 2 to obtain probate in respect of the suit lands No. I to III. Therefore, plaintiff Purushottam inquired as to how the transfer was effected. He noticed that by playing fraud, the defendants No. 1 and 2 had obtained a registered sale-deed dated 07-05-1957 from deceased Govindappacharya. That sale-deed was without consideration and purportedly in respect of land bearing survey No. 52A (Gat No. 136). He also learnt that another sale-deed dated 17-05-1959 was obtained in name of defendant No. 2 Nilkanth from deceased Yamunabai without payment of any consideration. The defendant No. 2 – Nilkanth lateron executed sale-deed dated 04-04-1960 in respect of a part of the suit land bearing Survey No. ( 6 ) 71 and Survey No. 52 i.e. Gat No. 139 and Gat No. 136 in favour of defendant No. 4. The predecessor-in-title of the plaintiffs, namely, Purushottam had filed the suit (Spl.C.S. No. 28/1968) for injunction and recovery of the suit lands No. I to III. He claimed possession in respect of lands Gat Nos. 138 and 139 which were allegedly transferred. 7. The parties to the earlier suit bearing Spl.C.S. No. 28/1968 litigated for quite a longer period. The Spl.C.S. No. 28/1968 was dismissed by the learned Civil Judge (S.D.), Ahmednagar. An appeal was preferred by the deceased plaintiff of that suit (R.C.A. No. 87/1970). This Court dismissed the first appeal. In the meanwhile, said Purushottam died on 1st February, 1976 and his legal heirs were substituted as appellants. The appeal was dismissed by this Court on various grounds including the fact that sale transactions referred to in the plaint of the earlier suit were not specifically challenged and there was no prayer for cancellation of the said sale-deed or setting aside the sale transaction. After dismissal of the said appeal, on ( 7 ) 23-11-1977, by an elaborate judgement of this Court, the next suit (R.C.S. No. 270/1978) was filed by the plaintiffs/appellants herein. 8. Initially, the suit was filed only against original defendants No. 1 and 2. The plaintiffs sought specific declaration that the sale-deeds executed in favour of defendant No. 2 Nilkanth were not binding on their rights and were outcome of fraud played on deceased Govindappacharya. They also claimed for possession of the suit lands No. I to III. 9. Original defendant No. 3 Maroti asserted that he had purchased a part of the suit land which originally bore survey No. 50 and survey No. 51 from defendant No.2 Nilkanth vide sale-deed dated 24th April, 1960. The defendant No. 8 Mahadu staked claim for land which he had purchased being a part of survey No. 51, from defendant No. 1 Yamunabai vide sale-deed dated 4th April, 1960. He submitted that he sold the said land to defendant No. 9 Smt. Vithabai. The plaint was amended on 1st November, 1983 with new prayers for declaration ( 8 ) that the subsequent transfers were not binding on the (plaintiffs). The plaintiff further submitted that the sale-deeds executed in favour of defendant No.2 Nilkanth and others were against the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short, “the BT&AL Act”). The plaintiffs, therefore, asserted that they were owners of the suit lands No. I to III and were entitled to receive the possession because the subsequent transfers also are invalid. 10. The defendants No. 1 and 2 resisted suit by their written statement (Exh-15). They denied that they allured deceased Govindappacharya to reside with them. They also denied that taking undue advantage of the mental and physical disability of Govindappacharya, his oldage and other circumstances, the sale-deeds were brought about by them. They submitted that deceased Govindappacharya had executed a will-deed on 30-06-1963 and also Yamunabai had executed a sale-deed on 19-10-1961 in their favour. They contended that the findings rendered by the Civil Court in previous suit viz. Spl.C.S. No. 28/1968 are binding on the plaintiffs. ( 9 ) They asserted that the suit is barred by principle of res judicata in as much as lis in the earlier suit and the present suit is the same, the parties are same and the earlier findings attained finality when this Court dismissed the first appeal. They also submitted that the suit lands No. I to III were in possession of defendant No.2 Nilkanth on basis of a lease-deed executed by deceased Govindappacharya. They further contended that the suit was barred under Order-II Rule-2 of the Civil Procedure Code because the claim for declaration was not put forth in the earlier suit though it could have been done. They further submitted that the suit is barred by limitation. According to the defendant No. 2 – Nilkanth, he was previously tenant of the deceased Govindappacharya in respect of the suit lands No. I to III. He also asserted that he became statutory owner in view of section 32-M of the BT&AL Act and, therefore, the civil Court has no jurisdiction to determine validity of the tenancy rights and the sale- deeds. On such premises, they sought dismissal of the suit. ( 10 ) 11. Original defendants No. 3 to 7, 10 and 12 did not participate in the suit proceedings. They were set exparte. 12. Original defendants No. 8, 9 and 11 filed filed their common written statement (Exh-53). They submitted that they are the bonafide purchasers. They submitted that they had no notice about the claim of the plaintiffs and, therefore, they are purchasers without notice. They further pleaded that they have carried out improvements in the purchased suit lands and for such purpose, have incurred expenses of Rs. Three (3) lacs. Consequently, they too sought dismissal of the suit. 13. The parties went to trial over the issues settled below Exh-21 by the trial Court. They adduced voluminous evidence in support of their contentions. The learned trial Judge held that Govindappacharya was blind and suffered from senility and, therefore, defendant No. 2 Nilkanth took undue advantage of the situation and got the sale-deeds executed in his favour. The learned trial Judge further held that the suit lands No. I to ( 11 ) III were not leased out to defendant No.2 Nilkanth by Govindappacharya and, therefore, he cannot claim statutory ownership rights under the provisions of the BT&AL Act. The learned trial Judge further held that the suit was not barred by principle of res judicata. Hence, the suit was decreed. The first Appellate Court, however, held that the suit was barred by principle of res judicata because the earlier suit filed by deceased Purushottam pertained to the same property and issues involved therein were identical to the lis in the present suit. The learned Additional District Judge came to the conclusion that the suit was barred by limitation. The findings rendered by the learned Additional District Judge led to the reversal of the decree passed by the trial Court. 14. Before I embark upon consideration of the rival submissions, let it be noted that this second appeal was admitted by the following single line order. “Admit on grounds 5 & 6.” ( 12 ) The then Hon’ble Judge (Patil, J.) did not separately formulate the substantial questions of law. The substantial questions of law involved in this appeal may be re-drafted and stated as follows : (i) Whether, in the facts and circumstances of the present case, the first Appellate Court committed patent error while holding that the sale-deeds dated 07-05-1957, 04-04-1966, 20-08-1982 and 10-02-1983 were not illegal and void since they were not hit by the provisions of section 23 of the Indian Contract Act ? (ii) Whether, in the facts and circumstances of the present case, the first Appellate Court committed patent error while holding that the suit was barred by principle of `res judicata’? (iii) Whether the suit is untenable in view of Order- II Rule-2 of the Civil Procedure Code and could be dismissed without any specific pleadings raised by the respondents ? (iv) Whether the suit is barred by limitation ? ( 13 ) It may be mentioned here that I have formulated some of the additional substantial questions of law in view of sub-section (5) of section 100 of the Code of Civil Procedure in order to curtail any further litigation on these questions. 15. Heard learned counsel for the parties. 16. The findings of facts rendered by the first Appellate Court need not be disturbed. There appears no perversity committed by the first Appellate Court while appreciating evidence of the parties. Some of the facts like ownership of deceased Govindappacharya, adoption of deceased Purushottam on 08-04-1940 by Govindappacharya and his wife Yamunabai, etc. are uncontroverted. It is explicit that after the death of Yamunabai in the year 1963 and death of Purushottam in the year 1966, Govindappacharya was survived by the plaintiffs No. 1 to 4 who are claiming through said Purushottam and the defendant No. 2 who is claiming through deceased Ramchandra, the natural predeceased son of deceased Govindappacharya. ( 14 ) 17. Mr. Dhorde R.N. Would submit that the first Appellate Court did not frame any point regarding bar of the suit under Order-II Rule-2 of the Civil Procedure Code and, therefore, finding on this point is perverse. He would point out that no such issue was framed during the trial. Nor such an issue was raised before the first Appellate Court. He contended that deceased Purushottam was atleast entitled to claim half share in the joint Hindu family property and, therefore, the dismissal of the earlier suit filed by him (plaintiff) would not operate as res judicata when he subsequently staked the claim for possession. He contended that the suit ought to have been decreed atleast to the extent of half share of the plaintiffs and partition decree could have been granted. It is contended that limitation would be available in view of Article 109 of the Limitation Act. It is further submitted that the time spent in litigating the earlier suit upto the High Court could be exempted for operation of law of limitation. Reliance is placed on “Union of India and others v. West ( 15 ) Coast Paper Mills Ltd. and another (III)” 2004 (3) SCC 458. Mr. Dhorde would submit that the appeal deserves to be allowed with directions to atleast give partition decree to the extent of half share of deceased Purushottam in the suit lands No. I to III. He pointed out that the subsequently, purchasers entered into the transactions during pendency of the suit and as such, the inter vivos transfers amongst the defendants are not binding on the rights of the plaintiffs. Mr. Dhorde, therefore, urged to allow the appeal. As against this, Mr. Shah P.M., learned Senior Counsel, supports the impugned judgement. 18. On perusal of the copy of plaint in the earlier suit (Spl.C.S. No. 28/1968), it is amply clear that the sale-deeds executed by deceased Govindappacharya were challenged on the ground of fraud, undue influence and his disability to effect the transfers. So also, a will-deed dated 20-05-1954 and subsequent will-deed dated 20-06-1963 executed by deceased Govindappacharya in favour of defendant No. 1 Mathurabai was challenged. ( 16 ) There was no prayer for setting aside the alienations effected by Govindappacharya and declaration that the will-deed dated 19-10-1961 was invalid. When the earlier suit was finally decided by this Court in first appeal No. 87 of 1970, the Hon’ble Division Bench rejected the contention that the suit was not maintainable due to absence of any prayer for setting aside the transactions. This Court observed that it was necessary for the deceased plaintiff – Purushottam to file suit for general partition. The simple suit for recovery of possession without any prayer for declaration of the nature of transaction was held to be improper. This Court observed : “34. If a suit for partition was brought by the plaintiff the purchasers defendant Nos. 2 to 4 could have claimed equity in allotting the properties in their possession to the share of defendant No. 1 and they would be denied the equity in a simple suit for possession, which the plaintiff brought in this case. In these circumstances, it is not possible to allow the plaintiff to amend the plaint, so as to seek relief of partition and ( 17 ) possession also in respect thereof, which even Mr. Sathe has not asked before this Court. 35. The learned Judge has observed, rightly, in para 28 of his judgement, as follows : “The plaintiff bases his claim on the footing that Govindacharya was a coparcener of a joint family consisting of himself and Govindacharya. According to the plaintiff Govindcharya passed a sale deed in respect of certain family lands in favour of Defendant No. 2 and Defendant No. 2 in turn executed sale deeds in regard to those land in favour of defendant Nos. 3 and 4. Even according to the allegations in the plaint Govindacharya was not a stranger in respect of the family lands. He had an undivided share in those lands. The plaintiff himself has averred in the plaint that the sale deeds are without consideration, hollow and not binding upon him. It is to be noted that plaintiff does not treat them as void documents right from their very inception. Under the circumstances, it was necessary for ( 18 ) the plaintiff to get the sale deeds avoided before he would get the reliefs sought by him in the prayer clause. It is no doubt true that the plaintiff has in form framed the suit as one for injunction in respect of some of the lands and one for possession in respect of other lands. But the suit is in substance a suit to set aside the sale deeds in favour of Defendant Nos. 2, 3 and 4. The substance of the pleading will have to be looked into in coming to the conclusion whether the plaintiff can bring this suit without making a pryaer to set aside the sale-deeds in favour of defendant Nos. 2, 3 and 4, which he has himself referred in the plaint.” 19. The Hon’ble Division Bench thus confirmed dismissal of the previous suit (SplC.S. No. 28/1968). While considering the question of limitation, it cannot be lost sight of the fact that the cause of action to challenge the sale transactions or will-deed executed by Govindappacharya was available to deceased Purushottam ( 19 ) when the said documents were executed by deceased Govindappacharya. In the lifetime of Govindappacharya, deceased Purushottam did not raise any voice. The sale- deeds dated 07-05-1957 (Exh-97) and 07-05-1959 purport to show that original land survey Nos. 52A, 71 and 50 were transferred in favour of defendant No. 2 Nilkanth by deceased Govindappacharya. It cannot be overlooked that defendant No.2 Nilkanth was the natural grandson of deceased Govindappacharya. It is but natural that deceased Govindappacharya was having love and affection towards the latter. The will-deed was said to have been executed on 20-05-1954 and subsequent will-deed was executed by Govindappacharya on 20-06-1963 in name of defendant No. 1 Mathurabai. Thus, the alleged invalidity of these documents was within knowledge of deceased Plaintiff Purushottam since atleast the year 1963 or at the most, somewhere immediately before filing of the earlier suit (Spl. C.S. No. 28/1968). The limitation period started running from date of the transactions. In other words, the suit ought to have been filed within period of twelve (12) years from date of the first transaction dated 07-05-1957 or for that matter, from ( 20 ) date of the will-deed which was executed on 20th June, 1963. This limitation period could be available only if Article 109 and Section 14 of the Limitation Act conjointly are held as applicable. Otherwise if Article 59 of the Limitation Act is to be applied, then the suit could not have been entertained because it was not filed within the stipulated time-frame. 20. Mr. Dhorde submits that when the present suit (R.C.S. No. 270/1978) was filed on 4th September, 1978, the period of limitation was available in view of section 14 of the Limitation Act. The previous suit was dismissed because no declaration was sought in respect of invalidity of the sale transactions or the will-deed, but subsequently, the defect is cured by filing the present suit (R.C.S. No. 270/1968). It is argued, therefore, that the period of litigation in the earlier suit is required to be excluded for the purpose of limitation in view of section 14 of the Limitation Act. Heavy reliance is placed on certain observations in “Union of India and others v. West Coast Paper Mills ( 21 ) Ltd. and another (III)” (2004) 3 SCC 458 and “India Electric Works Ltd. v. James Mantosh and another” AIR 1971 S.C. 2313. 21. In “India Electric Works Ltd.’ (supra), it has been observed that the expression “or other cause of like nature” as used in section 14 of the Limitation Act must be construed liberally. It has been held that where the second suit was filed for damages for period subsequent to the claim in the earlier suit, the period of pendency of the first suit could be excluded in view of section 14. The fact situation in the said case is on different footings from the fact situation obtained in the present case. In “Union of India and others” (supra), it has been observed that section 14 of the Limitation Act is wide enough to cover such cases where the defects are not merely jurisdictional strictly so called, but others more or less neighbours to such deficiencies. Any circumstance, legal or factual, which inhibits entertainment or consideration by the court of the dispute on the merits comes within the scope of the ( 22 ) section and a liberal touch must inform the interpretation of the Limitation Act which deprives the remedy of one who has a right. These are general observations made by the Hon’ble Bench in the given case. It is true that liberal construction of the expression “other causes of like nature” is required to be made. The Apex Court in above referred dictum categorically observed that the expression is wide enough to cover not only jurisdictional defects of the earlier suit/proceedings, but also other defects which were “more or less neighbour to such deficiencies”. This rider put by the Apex Court is significant. In my humble opinion, the expression “other cause of like nature” does imply that some semblance with the defect of jurisdiction or such technical defect must be shown. A Division Bench of the Apex Court in “Zafar Khan and others v. Board of Revenue, U.P. and others” (AIR 1985 S.C. 39), observed : “In order to attract the application of Sec. 14 (1), the parties seeking its benefit must satisfy the Court that : (1) that the party as ( 23 ) the plaintiff was prosecuting another civil proceeding with due diligence; (ii) that the earlier proceeding and the later proceeding relate to the same matter in issue and (iii) the former proceeding was being prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. It may be assumed that the earlier proceeding under Sec. 144 of the Code of Civil Procedure was a civil proceeding for the purpose of Sec. 14. It may as well be assumed in favour of the appellants that they were prosecuting the same with due diligence and in good faith, as they relentlessly carried the proceeding up to the High Court invoking its extraordinary jurisdiction. The first of the aforementioned three cumulative conditions can be said to have been satisfied.” 22. Needless to say, the three (3) conditions which a party is required to satisfy would include belief of a party that the litigation in the Court which did not possess