1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1527 OF 2010 Rajendra s/o Ranchoddas Basha, age: 46 years, Occ: Business, R/o Khara Kunwa, Aurangabad. Petitioner Versus 1 Smt.Pushpabai w/o Kanhayalal Basha, died, through his L.Rs. 2 to 5. 2 Vinod s/o Kanhayalal Basha, age: 29 years, Occ: Business; 3 Manoj s/o Kanhayalal Basha, age: 27 years, Occ: Business, Both R/o Khara Kuwa, Aurangabad. 4 Saw. Sangita w/o Rahyu Shraf, age: 33 years, Occ: Household, R/o Near Rang Mahal, Walkar Road, Nagpur (M.S.) 5 Sau.Harsha w/o Jayantilal Latharia, age: 38 years, Occ: Household, R/o Coti Chowk, Near School, At Post Jaitpur, Tq.Jaitpur, District Rajkot (Gujrat). 6 Divyesh s/o Prafullchand Kapadiya, age: 26 years, Occ: Service, R/o H.No.4-1-17, Khara Kuwa, Aurangabad. Respondents Mr.D.K.Kulkarni, advocate for petitioner. Mr.R.B.Deshmukh, advocate for Respondent. 2 CORAM: R.M.BORDE, J. DATE : 30th March, 2010. P.C.: 1 Heard Shri D.K.Deshmukh, learned Counsel for petitioner – original defendant no.6 and Shri R.B.Deshmukh, learned Counsel for Respondent No.6 – original plaintiff. 2 The grievance made in this petition by original defendant no.6 – petitioner herein is in respect of framing issues by the trial Court. 3 Respondent No.6 – original plaintiff presented a suit being R.C.S.No.859 of 2007 claiming declaratory decree to the effect that the Release Deed dated 04.06.2004 executed by original defendants no.1 to 5 in favour of defendant no.6 in respect of suit property is illegal, void ab initio and is not binding on plaintiff. Plaintiff also claims a decree of perpetual injunction against defendant no.6 – petitioner herein restraining him from creating third party interest in respect of suit property and from causing interference in possession of plaintiff over the suit property. 4 Defendant no.6 has opposed the suit by filing written statement. The contentions raised in the plaint have been specifically controverted by contesting defendant. Defendant No.6 – petitioner herein has specifically put forth plea that the sale deed executed in favour of original plaintiff – Respondent No.6 herein is illegal and that the plaintiff cannot be considered as bona fide purchaser of suit property for valuable consideration without notice. Contesting defendant has also raised plea of 3 limitation and contended that suit is barred. 5 It is contended that suit is posted for recording evidence and issues in the matter are already framed by trial Court. Defendant No.6 – petitioner herein tendered an application at Exhibit-40 to the trial Court requesting the Court to frame additional issue as to, “whether plaintiff proves that he is a bona fide purchaser of the suit property for valuable consideration without notice”. Defendant No.6 also prays for framing issue in respect of bar of limitation. However, trial Court has rejected the application after considering contentions raised by contesting parties. 6 I have perused the application as well as impugned order passed by trial Court. On the basis of pleadings, trial Court has framed six issues. Issue No.1 is as follows: “Whether sale deed in favour of plaintiff is legal?” 7 Both the parties to the litigation agree that Issue No.1, within its fold, cover the proposed issue, as to whether plaintiff proves that he is a bona fide purchaser of suit property for valuable consideration without notice. It would be a burden cast upon the plaintiff to prove that he is a bona fide purchaser for value without notice, in order to derive a conclusion that sale deed executed in favour of plaintiff is legal. In view of the contentions raised before me by contesting parties, I am of the opinion that proposed issue, as contended by defendant no.6, is not necessary to be framed in the facts and circumstances of the case and plaintiff shall have to prove, he being bona fide purchaser of suit property for valuable consideration without notice. 4 8 So far as the contention raised by defendant no.6 that the trial Court has failed to frame issue in respect of bar of limitation, it is for the trial Court to consider as to whether suit, as presented by plaintiff, is within limitation. As defendant no.6 has raised plea in respect of bar of limitation, it was incumbent upon the trial Court to frame additional issue in that respect. The Trial Court is, therefore, directed to frame additional issue in respect of bar of limitation. 9 In view of the observations made above, no further directions are necessary. 10 Writ Petition stands disposed of. Ad interim relief stands vacated. (R.M.BORDE) JUDGE ******* adb/wp152710