1 Shri Rohan Ashok Mahankale v. 1 Pimpri Chinchwad New Township Development Authority, Through Its Chief Officer,

1/11

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.432 OF 2013 WITH CIVIL APPLICATION NO.13 OF 2012 IN SECOND APPEAL NO.432 OF 2013

1. Shri Rohan Ashok Mahankale, aged about 22 years, occ. Agriculturist residing at 935 Raviwar Peth, Pune-411 002

2. Shri Prafulla Rajendra Mahankale aged about 21 years, occ. Agriculturist residing at 919 Raviwar Peth, Pune-411 002

3. Kum. Swati Rajendra Mahankale aged about 20 years, occ. Student residing at 910 Raviwar Peth Pune-411 002.

4. Shri Kapil Shyam Mahankale, aged about, occ. Agriculturist residing at 935 Raviwar Peth Pune-411 002

5. Shri Rajendra Balkrishna Mahankale aged about 44 years. Occ. Agril.

Residing at 919 Raviwar Peth Pune-411 002

6. Shri Ravindra Balkrishna Mahankale aged about 45 years, occ. Agriculturist residing at 919 Raviwar Peth Pune-411 002

7. Smt. Ranjana Dilp Gavali aged about 41 years, occ. Household work residing at 919 Raviwar Peth Pune-411 002

8. Shri Bhausaheb Dhondiba Mahankale since deceased through his heirs and

2/11 legal representatives.

(a) Smt. Rajmati Bhausaheb Mahankale since deceased (b) Shri Ashok Bhausaheb Mahankale aged about 49 years, occ. Agriculturist residing at 935 Raviwar Peth Pune-411 002 (c) Shri Shyam Bhausaheb Mahankale aged about 44 years, occ. Agriculturist residing at 935 Raviwar Peth Pune-411 002 (d) Shri Sanjay Bhausaheb Mahankale aged about 42 years. Occ. Agriculturist residing at 935 Raviwar Peth Pune-411 002

9. Shri Amol Ashok Mahankale, aged about 25 years, occ. Agriculturist residing at 935 Raviwar Peth, Pune-411 002 10.

Shri Atul Ashok Mahankale, aged about 22 years, occ. Agriculturist residing at 935, Raviwar Peth Pune-411 002 11.

Shri Somnath Dasharath Mahankale since deceased through his heirs and legal representatives (a) Smt. Vijaya Somnath Mahankale aged about 52 years, occ. Housewife residing at 919 Raviwar Peth Pune-411 002 (b) Shri Santosh Somnath Mahankale aged about 32 years occ. Agriculturist residing at 919 Raviwar Peth, Pune-411 002 (c) Shri Sandeep Somnath Mahankale aged about 27 years, occ. Agriculturist residing at 919 Raviwar Peth Pune-411 002 12.

Ramnath Dasharath Mahankale,

3/11 deceased through his heirs and L Rs (a) Smt. Vasanti Ramnath Mahankale aged about 47 years, occ. Household work, residing at 919 Raviwar Peth Pune-411 002 (b) Shri Mahesh Ramnath Mahankale aged about 32 years, occ. Agriculturist residing at 919 Raviwar Peth, Pune-411 002 (c) Shri Girish Ramnath Mahankale 27 years, occ. Agriculturist residing at 919 Raviwar Peth, Pune-411 002 (d) Shri Ganesh Ramesh Mahankale aged about 25 years, occ. Agriculturist residing at 919 Raviwar Peth, Pune-411 002 13.

Shri Surendra Moghe, power of attorney holder for Appellant Nos. 1 to 12 aged about 54 years, occ. Consultancy residing at 890 Sadashiv Peth, Pune-411 030.

.. Appellants.

(Org. Plaintiffs.) V/s

1. Pimpri Chincwad New Township Development Authority, through its Chief Officer, having its office at PNCTDA Nigadi, Pune-411 044

2. The Special Land Acquisition Officer No.3, Pune District Pune

3. Shri Ranu Appa Landge, since deceased through his heirs and legal representatives.

4/11 A. Smt. Tarabai Ranu Landge-deceased B. Shri Maruti Ranu Landge-deceased (a) Smt. Savitribai Maruti Landge, aged adult, occ. Household work (b) Abhimanyu Maruti Landge, aged adult, occ. Household work (c) Shivaji Maruti Landge, aged about occ. Agriculturist all residing at Landge Ali Gaothan Mouje Bhosari Taluka Haveli Dist. Pune.

C. Shri Kaluram Ranu Landge, aged adult, occ. Agriculturist D. Shri Shamrao Ranu Landge, aged Adult, occ. Agriculturist E. Shri Rajendrababa Banu Lange aged adult, occ. Agriculturist all residing at Bhosari Dist. Pune F. Sou. Hirabai Vasant Balghare aged adult, occ. household deceased & heirs of Respondent No.3 i.e. respondent Nos.3a to 3e & 3g.

Residing at Chinchwali, Dist. Pune.

G. Sou. Shantabai Babasaheb Nevale aged adult, occ. Household residing at Chikhali Taluka Haveli Dist. Pune.

4. Shri shankar Amruta Landge since deceased through his heirs and L Rs.

A. Yeshwant shankar Lange aged adult. Deceased through legal heirs 4B and 4C.

Occ. Agriculturist B. Shri Chhabu Shankar Landge,

5/11 aged, occ. Agriculturist Both residing at Bhosari, Tal.

Haveli District Pune.

C. Smt. Suman Dattatraya Nakhate aged adult, occ. Agriculturist residing at Rahatnee Dist. Pune

5. Shri Soma Kalu Landge since deceased through his heirs and L Rs.

A. Shri Chintaman Soma Landge aged adult, occ. Agriculturist B. Shri Parshuram Soma Landge since deceased through his heirs and L Rs.

(a) Shri Bajirao Parshuram Landge aged adult, occ. Agriculturist (b) Shri Rajendra Parshuram Landge aged Adult, occ. Agriculturist (c) Shri Kalidas Parshuram Landge aged adult, occ. Agriculturist all residing at Bhosari Taluka Haveli District. Pune.

C.

Shri Bhagwant Soma Landge aged adult, occ. Agriculturist D.

Shri Balu Soma Landge, aged adult occ. Agriculturist both residing at Bhosari Taluka Haveli District. Pune.

E.

Smt. Saubai Laxman Hagwane, aged adult occ. Agriculturist residing at Dehugaon, Dist. Pune F.

Dogambar Soma Lange aged adult occ. Agriculturist G.

Smt. Anjana Ramdas Pathare aged dult, occ. Agriculturist

6/11 H.

Smt. Anusaya Soma Landge aged adult occ. Agriculturist (deleted) All residing at Bhosari Taluka Haveli District Pune.

6. Shri Genu Raoji Landge, since deceased through his heirs and legal representatives A. Shri Shivaji Genu Landge, aged adult, occ. Agriculturist B. Shri Dashrath Genu Landge aged adult, occ. Agriculturist C. Shri Dilip Genu Landge, aged adult, occ. Agriculturist All residing at Bhosari, Taluka Haveli. Dist. Pune.

7. Smt. Sarubai Waman Landge, since deceased through her heirs and legal representatives.

7(1) Shri Baban Waman Landge since deceased through his heirs and legal representatives (a) Shri Rajendra Baban Landge aged adult, occ. Agriculturist (b) Shri Vikas Baban Landge aged adult. Occ. Agriculturist (c) Shri Prakash Baban Landge.

Aged adult, occ. Agriculturist All residing at Near Palika Hospital Uday Mitramandal Chowk Bhosari District. Pune.

(2) Shri Nivruti Waman Landge, aged Adult, occ. Agriculturist

(3) Shri Subhash Waman Landge since deceased through his heirs and legal representatives.

(a) Sunil Subhash Landge aged adult occ. Agriculturist

7/11 (b) Shri Sandeep Subhash Landge aged adult, occ. Agriculturist (c) Shri Sushil Subhash Landge aged adult, occ. Agriculturist (4) Sou Janabai Rajaram Borane aged adult, occ. Household work (5) Sou. Gajarabai Pundalik Bawale aged adult, occ. Household work All residing at Bhosari, Taluka Haveli District. Pune.

8. Shri Jayawant Mahipati Landge since deceased through his heirs and L Rs No. 1 to 3 are already on record.

(1) Shri Lala Jayawant Landge aged adult, occ. Agriculturist

(2) Shri Vitthal Jayawant Landge since deceased through his heirs and Legal Representatives.

(a) Smt. Indubai Vitthal Landge, aged adult, occ. Household.

(b) Shri Suryakant alias Balasaheb Vitthal Landge, aged adult occ. Agriculturist (c) Shri Chandrakant alias Appa Vitthal Landge aged adult, occ. Agriculturist, since deceased, heirs already on record 8a, 8b, 8d, 8e, 2 & 3.

(d) Shri Anil Vitthal Landge aged adult, occ. Agriculturist (e) Shri Vasudeo Vitthal Landge aged adult occ. Agriculturist, (f) Smt. Laxmi Nandu Phuge aged adult. Occ. Agriculturist Since deceased heirs already on record 8a, 8b, 8d, 8e, 2 & 3 All residing at Gavhane Vasti Bhosari Taluka Haveli District. Pune.

8/11 (3) Shri Shivaji Jaywant Landge, aged adult. Occ. Agriculturist residing at Bhosari Taluka Haveli District Pune.

9. Smt. Rukhminibai Balkrishna Mahankale aged about 66 years, occ. Household residing at 919 Raviwar Peth, Pune-411 002.

.. Respondents.

(Org. Defendants) Mr. K.Y. Mandlik, for Appellants.

Mr. Vijay Patil, for Respondent No.1.

Coram : Smt. R.P. SondurBaldota, J.

Date : 11th March, 2015 P.C.

1.

This Second Appeal challenges the concurrent findings of the Courts below in rejecting the plaint of the appellants under Order VII Rule 11 of the Code of Civil Procedure, on the ground that it is barred by the law of limitation.

2.

In the year 2007, The appellants filed Regular Civil Suit No.251 of 2007 seeking declaration that they are owners of the suit property and that decree passed by the Civil Court in Civil Suit No.1168 of 1957 is not binding on them. They also sought permanent injunction to restrain the respondents from transferring the suit property to a third person. The respondents are the original

9/11 defendants to the suit. Respondents No.1 and 2 are the body acquiring the suit land, the acquisition in respect of which was completed on 31st August, 1986 and possession of the suit land taken and compensation to the extent of Rs.43,20,001/- paid to respondents No. 3 to 12(c). Original defendant No.4(a) and original defendants No.7(2), 3A to 3C, 4 and 5 filed the application under Order VII Rule 11 of the Code of Civil Procedure at Exhibits 144 and 54, respectively, contending that suit was barred by law of limitation and also that the appellants had not valued the suit properly. 3.

It was contended by the appellants in their plaint that decree dated 25th October, 1962 passed in Regular Civil Suit No.1168 of 1957 had remained unexecuted for more than 12 years and as a consequence, it had become inexecutable. The decree in question holds that the transaction between the appellants and respondents No.3 to 12(c) was not of sale of the suit property but of mortgage, which mortgagee was redeemed. The appellants, claim that they have continued to be in possession of the suit property, despite the decree as respondents No.3 to 12(c) had never applied for execution of the decree seeking possession of the suit property. The Courts below found that the acquisition of the suit property had taken place

10/11 in the year 1986. The appellants admit the fact at para 8 of the plaint, by referring to the payment of compensation to respondents No.3 to 12(c). On the basis of the decree dated 25th October, 1962, respondent nos. 3 to 8 had got the revenue record changed to indicate that they are the owners of the suit property. According to the appellants, they learnt about the acquisition on 03rd November, 2006 first time and therefore, suit filed in the year 2007 was within time. At para 16 of the plaint, appellants state that decree in Regular Civil Suit No.1168 of 1957 had been challenged by them by preferring Civil Appeal No.371 of 1963 and thereafter by filing Civil Revision Application No.109 of 1965. But the same had been ultimately withdrawn by the appellants, though the plaint does not mention the date of withdrawal of the applications. 4.

Considering the reliefs sought by the appellants in the plaint, it is obvious that in view of the acquisition in the year 1986, taking over of the possession of the suit property by the acquiring body and payment of compensation, nothing had remained for the decree-holders for execution of the decree. It stood executed on acquisition of the property by respondents No.1 & 2 and on receipt of compensation by the other respondents. Therefore, there is no

11/11 infirmity in the impugned order.

5.

Mr. Mandlik, the learned advocate for the appellants sought to argue that Courts below erred in treating the question of limitation as a pure question of law when the question of limitation is always a mixed question of law and facts. This is not and cannot be an absolute preposition of law. The question of limitation is ordinarily a question of law. But it becomes a mixed question of law and facts depending upon the facts and circumstances of each case. If the facts required to be taken into consideration for deciding the question of limitation are disputed then it becomes the mixed question of law and facts. In any case, the Trial Court had given opportunity to the appellants to lead the evidence. The appellants ought to have taken that opportunity. Apart from that it is not even the case of the appellants that any specific facts relating to the question is disputed. Therefore, the Second Appeal is dismissed. 6.

In view of dismissal of the Second Appeal, the Civil Application does not survive and the same is disposed of. (Smt. R.P. SondurBaldota, J.)