Shankar Bahiru Tambe v. Kaushabai Nivruti Tupe

Santosh

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 380 OF 2024 Shankar Bahiru Tambe and anr.

...Applicants

Versus

Kaushabai Nivruti Tupe and ors.

...Respondents

Mr. Vivek Punjabi, a/w P. Zaiwalla, for the Applicants. SANTOSH SUBHASH KULKARNI

CORAM:

N. J. JAMADAR, J.

DATED:

3rd MARCH, 2025 SANTOSH SUBHASH KULKARNI Date: 2025.03.05 14:25:52 +0530 ORDER:- 1.

Heard the learned Counsel for the applicants. 2.

The challenge in this application is to an order dated 27th February, 2024 passed by the learned Civil Judge, Senior Division, Sinnar, on an application (Exhibit-56) preferred by the applicants for rejection of the plaint under Order VII Rule 11 of the Code of Civil Procedure, 1908.

3.

In the suit, in addition to the relief of partition and separate possession of their share in the joint family property the plaintiffs sought a declaration that the mutation entries made in the record of rights of the suit land are void-ab-initio and also sought the proportionate share in the compensation which has been determined in respect of acquisition of a 1/3

portion of the suit property under the Maharashtra Highway Act, 1955.

4.

The learned Counsel for the applicants submitted that, the reliefs in the plaint are barred by law of limitation. A relief of declaration that a mutation entry is illegal and void cannot be sought before a Civil Court. Nor the compensation could have been claimed. The plaintiffs ought to have approached the competent authority under the Maharashtra Highway Act.

5.

The submissions do not merit countenance. Primarily and singularly the suit is for partition of the joint family property, in which the plaintiffs claim a share. Relationship between the parties is not in dispute. Nor the character of the property can be put in contest. Eventually the plaintiffs may not succeed in getting the reliefs which they are claiming in the instant suit. However since the suit is for partition and separate possession of the joint family property, a clear right to sue exists. The question of limitation may not arise as the defendants will have to establish a clear case of ouster if the claim of the plaintiffs for partition of joint family property is contested on the ground of bar of limitation. That would be a 2/3

question of fact. Thus, this Court does not find any infirmity in the impugned order.

6.

The petition stands dismissed.

[N. J. JAMADAR, J.] 3/3