1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD SECOND APPEAL NO.263 OF 1987 Nagorao Trimbakrao Dharmadhikari Age 23 years, Occ. Agriculture, R/o Karanjala, Taluka Ambad, District Jalna ... APPELLANT (Original Plaintiff) VERSUS 1. Govindrao s/o Kakuji Nandre, Age 60 years, 2. Laxman s/o Shamrao Dhumak Age 33 years, Both r/o Karanjala, Taluka Ambad, district Jalna. ... RESPONDENTS (Original Defendants. ..... Shri H.F. Pawar, Advocate holding for Shri A.H. Kapadia, Advocate for the appellant Shri S.S. Bora, Advocate for the respondent ..... CORAM : SHRIHARI P. DAVARE, J. DATED : 18TH JULY, 2009. ORAL JUDGMENT : 1. Perused. Heard learned counsel for the parties. 2 2. The appellant / plaintiff filed Regular Civil Suit No.93/1978 against the defendants/ respondents for the recovery of possession of Gat No.27, to the extent of 9 acres and 7 gunthas of land towards the northern side. The plaintiff claimed that he is the owner of the said suit land known as ‘Bhokar’, situated at village Karanjala, and defendants have no right or concern with the ownership of the suit land. Plaintiff also contended that in the year 1967 the defendant No.1 had illegally occupied the suit land during the minority of the plaintiff. The plaintiff attained the majority in the year 1976. He requested the defendants to hand over the possession of the suit land. However, the defendants refused to do so. Hence, the plaintiff filed the aforesaid suit for the recovery of possession of suit land. 3. The defendants resisted the suit claim of the plaintiff and denied the ownership of the plaintiff in respect of the suit land. Defendants contended that the defendant No.1 was the owner of the suit land. They also contended that although the suit land was ancestral property of the plaintiff, it was sold to defendant No.1 by way of registered sale deed dated 5.7.1966 for the consideration of Rs.6750/- and he was put in possession thereof on the same day. Thereafter, defendant No.1 has sold the said land to defendant No.2 on 15th May 1978 for consideration of Rs.16,000/- and possession thereof was handed over to defendant No.2 – purchaser. Accordingly, it is the contention of the defendants that the defendant No.2 is in possession of the suit land since the execution of the said sale deed. Defendants also denied that they took undue advantage of the minority and helplessness of plaintiff. They further submitted that the said sale deed 3 dated 5.7.1966 was executed by the natural guardian mother of the plaintiff namely Shakuntalabai for the maintenance and meeting the expenses of education of the plaintiff. Accordingly, it is the contention of the defendants that their possession over the suit land is lawful. It is further submitted by the defendants that the plaintiff has not got the said sale deed cancelled after attaining majority and hence, it is binding upon the plaintiff. Alternatively, it is contended by the defendant No.1 that he adversely possessed the suit land for more than 12 years and thereby he has perfected his title. Hence, it is further submitted that the plaintiff is not entitled to claim the possession of the suit land and, therefore, requested that the said suit be dismissed. 4. Considering the rival submissions, the learned Civil Judge, Junior Division, Ambad dismissed the said suit by his judgment and order dated 30.9.1981. Being aggrieved and dissatisfied by the said judgment, the plaintiff/ appellant filed Regular Civil Appeal No.363/1981 before the District Judge, Jalna. However, the said Regular Civil Appeal No.363/1981 also came to be dismissed with costs by the learned Additional District Judge, Jalna, by his judgment and order dated 15.7.1987. Being aggrieved and dissatisfied by the said judgment and order dated 15.7.1987, the plaintiff/ appellant has preferred the present Second Appeal before this Court. 5. The learned counsel for the appellant canvassed that mainly the Ground No.8 of the present appeal involves the substantial question of law, 4 which reads as under : “That the learned District Judge ought to have considered that the suit is not for cancellation of the sale deed but is of recovery of possession on the basis of title of the plaintiff, and the provisions of Article 65 are applicable to such a suit.” 6. Keeping in mind the said ground and coming to the very suit i.e. Regular Civil Suit No.93/1978, a bare perusal of the contents thereof discloses that the said suit was filed by the appellant/ plaintiff for the recovery of possession of the land out of Gat No.27, admeasuring 18 acres and 30 gunthas known as Bhokar, situated at village Karanjala, Taluka Ambad, District Jalna, to the extent of 9 acres and 7 gunthas from the northern side and not for challenging the registered sale deed dated 5.7.1966, executed by his natural guardian mother Shakuntalabai in favour of defendant No.1within the period of limitation after attaining the majority. Pertinently there are no averments in the plaint regarding possession of the suit land on the basis of title in respect of ground No.8 in the appeal memo and the plaintiff/ appellant has miserably failed to establish his claim of recovery of possession of the suit land without challenging the said sale deed dated 5.7.1966 within the period of limitation after attaining majority. Hence, plaintiff’s claim to suit land allegedly on the basis of title bears no substance. 7. In the said context, reliance can be very well placed on the observations made in paragraph Nos.10 and 11 in the case reported at 2001 5 DGLS (Soft.) 875 (Vishwambhar Vs. Laxminarayana), decided by D.P. Mohapatra : Doraiswamy Raju, JJ., which read as under : “From the averments of the plaint it cannot be said that all the necessary averments for setting aside the sale deeds executed by Laxmibai were contained in the plaint and adding specific prayer for setting aside the sale deeds was a mere formality. As noted earlier, the basis of the suit as it stood before the amendment of the plaint was that the sale transactions made by Laxmibai as guardian of the minors were ab initio void and, therefore, liable to be ignored. By introducing the prayer for setting aside the sale deeds the basis of the suit was changed to one seeking setting aside the alienations of the property by the guardian. In such circumstance the suit for setting aside the transfers could be taken to have been filed on the date the amendment of the plaint was allowed and not earlier than that.” Moreover, reliance also can be placed on the following observations made in paragraph No.9 of the Suprme Court in the case reported at 1996 DGLS (Soft.) 1671 (Divya Dip Singh Vs. Ram Bachanmishra) decided by K. Venkataswami & M.M. Punchhi, JJ.), which reads as under : “We do not think that Mr. B.B. Singh was right in his submission. He failed to take note of the important factor, namely, the appointment of guardian in the title suit was one under Order XXXII Rule 3 of the Code of Civil Procedure, which will not take away the right of the natural guardian forever. Once the guardian appointed during the pendency of the suit was properly 6 discharged, the rights of the natural guardian revive. The case cited by the learned counsel for the appellant was under the Guardians and Wards Act, 1890, which will have no application to the facts of the present case. As a matter of fact, Section 8(3) of the Hindu Minority and Guardianship Act, 1956 expressly provides that any disposal of immovable property by a natural guardian in contravention of Ss. (1 or Ss. (2 of Section 8 is viodable at the instance of minor or any person claiming under him. Ss. (2 of Section 8 inter alia bars the natural guardian from encumbering or selling the immovable property without the previous sanction of the Court. Under the circumstances and in view of the admitted position that the minors have not challenged the sale within three years from their attaining majority, have no right to ignore the sale as void. Further as noticed earlier, the appellants themselves have accepted the said sale by their father by writing a letter to the Collector of Bhojpur at Arrah and requesting to collect the loan arrears advanced against the suit lands, from the purchaser/ first respondent. Still further, it is again common ground that the appellants have not filed any objections to the statements published under Section 9-A and the Scheme published under Section 12 of the Act within the prescribed period. All these factors, as already noted, were taken due note of by the High Court, while passing the judgment under appeal.” 8. Applying the parameters of the observations made by Hon’ble Supreme Court in the aforesaid cases to the present case, admittedly the plaintiff herein has not challenged the registered sale deed dated 5.7.1966 executed by his natural guardian mother Shakuntalabai (Exh. 37) along with possession thereof in favour of defendant No.1 within the period of limitation after attaining the majority and consequently, the defendant No.1 7 sold the suit land to defendant No.2 by registered sale deed dated 15.5.1978 (Exh. 58) along with possession thereof and hence, in view of the said position, there is no substantial question of law in the present Second Appeal, and consequently, there is no substance therein and same is devoid of any merits and, therefore, same deserves to be dismissed. 9. In the result, the present Second Appeal No.263/1987 fails and same stands dismissed with costs. (SHRIHARI P. DAVARE, J.)