SMT. PRABHAVATI SHANTILAL PORWAL Vs. SMT. KALPANA DILIP PORWAL & ORS
HIGH COURT OF BOMBAY
Smt. Prabhavati Shantilal Porwal
Smt. Kalpana Dilip Porwal And Ors
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(1.) In this Civil Revision Application, the order dated 29 th January, 2002 passed in Exhibits 1 and 39 holding that the plaintiff's suit is within the prescribed period of limitation is under challenge.
(2.) The applicants are the original defendant nos. 1 and 2. The petitioner no. 1/mother has expired and therefore her son/original defendant no. 2, being her legal heir, is prosecuting the matter.
Respondent nos. 2 and 3 are the legal heirs of the original plaintiff. The original plaintiff-Dilip
Shantilal Prowal and respondent no. 4 are the brothers of the petitioner no. 1 and respondent no. 5.
The original plaintiff has filed Special Civil Suit No. 554 of 1997 in the Court of Civil Judge Senior Division, Pune (which was subsequently numbered as Regular Civil Suit No. 4038 of 2000) for partition, injunction and declaration in respect of cancellation of Release deed dated 13th April, 1987 bearing register no. 4610 of 1987 and a Deed of Partition dated 9th August, 1983 bearing register no. 5336 of 1983 are illegal and void and not binding on the plaintiff. The plaintiff has filed the suit on 20th March, 1997 and therefore, Application Exhibit 39 was moved by the defendant requesting the Court to frame preliminary issue on the ground that the suit is barred under the law of limitation. The trial Court accordingly framed the issue of limitation as a preliminary issue. Both the parties led evidence on the point of limitation and the learned trial Judge gave finding in favour of the plaintiff that the suit is within the prescribed period of limitation. Hence, this Writ Petition.
(3.) Before recording the submissions of the learned counsel for the petitioner, some facts are to be stated. The plaintiff earlier filed the Regular Civil Suit No. 1981 of 1995 against the petitioners
praying that the registered Release Deed dated 13 th April, 1987 was obtained under threats and
pressure and is illegal and void ab initio and also prayed for injunction restraining the
petitioners/original defendant nos 1 and 2 from ousting the plaintiff and also from transferring the entire
property in the name of the third party. The said suit was withdrawn on 18th March, 1997 on
obtaining the liberty to file a fresh suit and thereafter Special Civil Suit No. 554 of 1997 was filed.
Original defendant no. 3/respondent no. 4, who is one of the brothers, has left the house and his
whereabouts were not known for a considerable period of time and therefore, original defendant no.
1/mother has filed the Suit No. 1292 of 1993 for declaration of civil death of respondent no. 4. The said suit was dismissed by the Civil Court on 13 th September, 1995. The said order was not
challenged before the Higher Court. It is the case of the plaintiff that in the year 1980, he was sent to
Mumbai for education and to be expertise in the business. However, he unfortunately got addicted
to liquor and thereafter he was sent back to Pune. He was found a completely addicted person. It is
his case that petitioners/defendant nos. 1 and 2 got executed Deed of Partition on 9 th August, 1983
and Release deed on 13th April, 1987 under the coercion and threat and he was not aware of the
same. He was sent to de-addiction centre, namely, Muktangan. He stayed for one month in
Muktangan and with efforts, some how he got out of his addiction in the year 1994-95. It is his
contention that in the year 1995, when he wanted to change the
name on the electricity meter of his residence, which is comprising of two
rooms in the family house, he realized that instead of his name, name of defendant no.1/mother and
defendant no. 2/brother, i.e., petitioners were substituted. Similarly, he had received the notice of
the suit of 1993 filed by his mother for declaration of civil death of his brother and he had filed the
reply to the subject matter also.
However, he had knowledge in the year 1995 and petitioners/defendant nos. 1 and 2 have got these two documents Exhibited under coercion and he is having lawful share in the ancestral property. Therefore, he filed the suit for challenging this and also for partition. ;
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