Moreshwar Rode And Other v. Anil Waghmare And Other
2026:BHC-NAG:235
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.
4 OF APPELLANTS Ori. Defts. On R.A.
:- 1. Moreshwar Rode (deceased), through LR's, 1A) Smt Indu wd/0 Moreshwar Rode aged 85 years, occ. Nil 1B) Premdas Moreshwar Rode, aged 62, occ. agriculturist 1C) Sanjay Moreshwar Rode, aged 60 occ. agriculturist All nos. 1A to 1C r/o Bothuda, Tah.
Samudrapur, dist. Wardha 1D) Sunil s/o Moreshwar Rode, aged 55 years, occ.- Self-employed, r/o Near Gujrathi Bhawan, Gond Plot, Hawaldarpura, Wardha, dist. Wardha
2. Padmakar s/o Moreshwar Rode, aged about 55 years, occ. Tailor, R/o Bothuda, tah. Samudrapur, Dist.
Bhandara.
..VERSUS..
RESPONDENTS Ori. pltffs. On R.A.
:- 1. Anil Waghmare (deceased) Through LRS 1A) Smt Durga wd/0 Anil Waghmare, aged 45 years, occ. household 1B) Ku. Rohini d/o Anil Waghmare, aged 22 years, occ. student 1C) Ku. Shreya d/o Anil Waghmare, aged 20 years, occ. Student
All Nos.1A to 1C r/o Goji, Tah. And dist. Wardha.
2. Sou. Pramila w/o Subhashrao Wanjari, aged 55 years, occ. Housewife, r/o Kinhala, post Shegaon (Kund), Tah.
Samudrapur, dist. Wardha.
------------------------------------------------------------------------------------------------------------------------------------ Mr. N. A. Vyawahare a/w. Vedant Vyawahare, Advocate for Appellants. ------------------------------------------------------------------------------------------------------------
CORAM
: ROHIT W. JOSHI, J.
DATE : 06.01.2026 ORAL JUDGMENT :
1) The present appeal is preferred by the original defendants in Regular Civil Suit No.53 of 2008 (old No.167 of 2001). The respondents/original plaintiffs, who had initially filed a suit for perpetual injunction seeking restraining orders against the defendants from disturbing their possession over the suit property.
2) The plaintiffs claimed to be in possession of the suit property on the basis of sale deed dated 06.05.1994, executed in his favour by the defendant No.1. Defendant No.2 is the son of defendant No.1. The suit property is an agricultural land admeasuring 1.21 H.R., being part of Survey No.717, total admeasuring 2.88 H.R., situated at Village
Mandgaon, Tahsil Samudrapur, District Wardha. 3) The defendant No.1 opposed the suit, contending that it was a camouflage for money lending transaction, under which the plaintiff had advanced a loan of Rs.12,000/- to defendant No.1. Defendant No.2 also opposed the suit. Amongst other grounds, defendant No.2 contended that the suit property was ancestral property and therefore, defendant No.1/father had no right to alienate the same, since the alienation is without legal necessity. It will also be pertinent to state that defendant No.1 filed a counterclaim for cancellation of sale deed.
4) As stated above, initially, the suit was filed seeking relief of perpetual injunction. The plaint was thereafter amended in order to incorporate a prayer for declaration of ownership and possession. Application for amendment came to be filed on 16.07.2005 and the same was allowed vide order dated 05.03.2007. The learned Trial Court has decreed the suit, granting declaration of ownership with respect to the suit property in favour of the plaintiff alongwith a decree for possession of the same. The counterclaim filed by
defendant No.1 came to be dismissed. The defendants challenged the said judgment and decree dated 25.09.2013 passed by the learned Trial Court by filing an appeal, being Regular Civil Appeal No.43 of 2017, which came to be dismissed vide judgment and decree dated 22.12.2023 passed by the learned District Judge-2, Hinganghat. 5) The original defendants have preferred the present Second Appeal, challenging the said concurrent decrees. 6) Mr. N. A. Vyawahare, the learned Advocate for the appellants argues that the prayers for declaration of ownership and possession, which were incorporated by way of amendment, were barred by limitation. He draws attention to the plaint and contends that the sale deed in favour of the plaintiff is dated 06.05.
1994 and the application for amendment seeking prayer for possession was allowed after a period of 12 years vide order dated 05.03.2007. Mr. Vyawahare contends that since the application was allowed after a period of 12 years, the prayer for possession was barred by limitation.
determination with respect to challenge raised to the decree passed in the counterclaim.
7) The sale deed in favour of the plaintiff is dated 06.05.1994. Application for amendment of plaint in order to incorporate a prayer for possession, was filed on 16.07.2005. 8) As stated above, the said application is allowed on 05.03.2007. Application for amendment in order to seek prayer for possession is filed within a period of 12 years from the date of sale deed. The plaintiff is claiming relief of possession on the basis of title, for which the limitation prescribed is 12 years. The limitation shall commence from the date on which the possession becomes adverse to the plaintiff. Assuming that possession had become adverse from the date of sale itself the application for amendment was filed within a period of 12 years and as such, the prayer for amendment cannot be said to be barred by limitation by any stretch of imagination. The contention of Mr. Vyawahare that the limitation should be computed up to the date on which the learned Trial Court passed the order allowing the application for amendment cannot be accepted. There cannot
be any certainty with respect to the period within which an application filed by litigant in a civil suit will be decided. It is well settled that rights of parties are crystallized on the date on which they move appropriate suit or application as in the present case, seeking a particular relief. Therefore, the limitation will have to be computed only till the date of filing of application for amendment.
9) The contention of Mr. Vyawahare that the prayer for limitation was barred by limitation also cannot be accepted, since the written statement does not contain any statement as to the date on which the possession of the defendants became adverse to the plaintiff.
10) In view of the aforesaid, the first contention with respect to limitation is liable to be rejected. 11) As regards the point for determination in the counterclaim, the counterclaim was filed by the defendant No.1 challenging sale deed in favour of the plaintiff on the ground that it was a document created for creating security for a loan of Rs.12,000/- allegedly advanced by the plaintiff to the defendant No.1. Both the Courts have concurrently
held that the defendant No.1 failed to prove the case of loan transaction. These findings of fact are based on proper appreciation of evidence. In fairness, Mr. Vyawahare has not challenged the said findings, having regard to limited scope of appeal filed under Section 100 of the Code of Civil Procedure. The contention that the point for determination with respect to correctness of counterclaim is not framed, is a contention of technical nature rather than a contention relating to substance of the dispute inasmuch as, admittedly, there is a sale deed with respect to the suit property in favour of the plaintiff and the defence of the sale transaction being a camouflage for hand loan is rejected concurrently by both the learned Courts. Although point for determination is not framed, the contention raised in the counterclaim that the sale deed was a mere camouflage for loan transaction is dealt with by the learned First Appellate Court.
12) In such circumstances, in my considered opinion, failure to frame point for determination with respect to correctness of the judgment on the basis of which decree in counterclaim is passed will not be a substantial question of
law, but merely a technical question of law. No prejudice is caused to the appellants on account of failure on the part of the learned First Appellate Court to frame point for determination with respect to correctness of decree passed in counterclaim. It must be stated that the learned First Appellate Court has on re-appreciation of evidence discarded the case of loan transaction set-up by the defendants. 13) As regards the contention that the property was Joint Hindu Family property and the defendant No.1 could not have alienated the same without legal necessity, it is well settled that alienation of suit property by a Karta, even without legal necessity is not void but voidable at the instance of other coparceners. Defendant No.2, who is son of defendant No.1 has not challenged the sale deed. Other coparceners, if any, had also not challenged the sale deed. 14) In view of the aforesaid, no substantial question of law arises for consideration, Second Appeal is, therefore, dismissed with no order as to costs.
(ROHIT W. JOSHI, J.)