Bombay High Court
Bhaurao Pandit Wagh Since Deceased … vs Mangal Sahadu Darade on 16 July, 2026
CNR No : HCBM010593952025
2026:BHC-AS:30162
5-SA-439-2020 (1).docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 439 OF 2020
Swapnil
Bhaurao Pandit Wagh and Ors. ... Appellants
Vs.
Mangal Sahadu Darade. ... Respondent
WITH
INTERIM APPLICATION NO. 13579 OF 2025
Mr. Sanjay Shinde for the appellants.
CORAM : GAURI GODSE, J.
DATE : 16th JULY 2026
ORDER :
INTERIM APPLICATION NO. 13579 OF 2025
1. This application is filed for bringing on record the
names of the heirs and legal representatives of appellant
no.1.
2. There is delay in filing the application. Office remark
shows that the notice is served upon the sole respondent.
Though served, none appears for the respondent.
3. In the facts and circumstances of the case and for the
reasons stated in the application, delay is condoned, and the
application is allowed in terms of prayer clause ‘a’ to ‘d’.
1/10
5-SA-439-2020 (1).docx
4. Amendment to be carried out within four weeks.
5. The interim application is allowed in the aforesaid
terms.
SECOND APPEAL NO. 439 OF 2020
1. This second appeal is filed by the original plaintiffs to
challenge the concurrent judgments and decrees dismissing
their suit for declaration, specific performance of contract
and, in the alternative, for possession. The plaintiffs
contended that the sale deed dated 16 th March 1999,
executed by their father, was null and void and not binding
upon them as the suit property was ancestral and their share
could not have been transferred by their father. They have
also pleaded fraud against the defendant for getting the
nominal and sham document of sale executed from their
father.
2. The plaintiffs further pleaded that immediately the next
day, i.e. 17th March 1999, a separate agreement was
executed, under which the defendant agreed to reconvey the
property on payment of Rs. 1,40,000/-. According to the
plaintiffs, the last payment was to be made on 15 th March
2/10
5-SA-439-2020 (1).docx
2004, and the deed of reconveyance was to be executed.
The plaintiffs further contended that an amount of Rs.
75,000/- was paid. Their father expired sometime in 2007.
Thereafter, the plaintiffs called upon the defendant to execute
the deed of reconveyance and to refrain from interfering with
the plaintiffs’ possession. In the alternative, the plaintiffs
prayed that if the defendant is found in possession, the
defendant should be directed to hand over possession to the
plaintiffs. The plaintiffs also made one more alternative
prayer that in the event the sale deed cannot be executed in
their favour, the defendant should be directed to refund the
amount of Rs. 65,000/- and damages to the tune of Rs.
1,40,000/-. This suit was filed on 6 th August 2011. The
defendant denied the execution of any agreement for
reconveyance. The defendant further contended that the suit
property was validly transferred to the defendant and no
amounts were received by the defendant in pursuance of the
alleged agreement for reconveyance.
3. The trial court held the issues regarding execution of
the sale deed to be null and void in favour of the plaintiffs.
The alternative prayer regarding execution of the agreement
3/10
5-SA-439-2020 (1).docx
for reconveyance was also held in favour of the plaintiffs. The
trial court further held that the plaintiffs proved the payment
of Rs. 41,000/- based on the receipts produced on record.
The trial court, however, held the issue of readiness and
willingness against the plaintiffs, as the payment agreed as
per the terms of the agreement relied upon by the plaintiffs
was not proved. The defendant was held to be in possession
of the suit property. The suit was dismissed on the ground
that it was barred by limitation.
4. In an appeal preferred by the plaintiffs, the trial court’s
judgment and decree is confirmed. The first appellate court
held that the plaintiffs failed to prove the alleged agreement
dated 17th March 1999 and further held that the suit was
barred by limitation. In view of the plaintiffs’ theory that
payment of the consideration amount was to be made by 15 th
March 2004, was considered as an important factor for
deciding the issue of limitation for the prayer for specific
performance. Considering that the suit was filed beyond the
period of limitation for the purpose of specific performance,
the first appellate court dismissed the suit as barred by
limitation. On the issue of the sale deed in favour of the
4/10
5-SA-439-2020 (1).docx
defendant being null and void, the first appellate court held
that the prayer for declaration was also barred by limitation.
5. Learned counsel for the appellants submits that as the
suit is filed for various reliefs, the issue of limitation needs to
be decided based on the longer period of limitation available
for one of the prayers. He submits that since the suit was
filed for possession on the ground of title, the prayer for
possession would be within limitation as it is filed within 12
years from the cause of action of 2004 pleaded by the
plaintiff. He, therefore, submits that in view of Article 65 of the
Limitation Act, 1963. The prayer for possession being within
limitation, the entire suit cannot be dismissed as barred by
limitation.
6. He relies upon the decision of the Apex Court in
Sopanrao and Anr. Vs. Syed Mehmood and Ors 1 to
support his submissions that even if one of the prayers is
within limitation, the suit cannot be dismissed as barred by
limitation if some of the prayers are barred by limitation. To
support his submissions that the suit is within limitation as
possession is prayed on the ground of title, he relies upon
1 (2019) 7 SCC 76
5/10
5-SA-439-2020 (1).docx
the relevant averments in the plaint to contend that the suit
was filed on the ground that they were co-owners of the suit
property as it was a joint family property. He, therefore,
submits that since the suit for possession was on the ground
of title, both the courts erred in dismissing the suit as barred
by limitation. He, therefore, submits that the second appeal
raises a substantial question of law on the incorrect dismissal
of the suit as barred by limitation.
7. I have perused the plaint. The substantial prayer in the
suit for seeking title is based on the prayer for declaration
that the sale deed executed on 16 th March 1999 is null and
void ab initio, nominal, sham and bogus. The second prayer
in the suit is for specific performance of the agreement which
is pleaded to have been executed on 17 th March 1999 for
reconveyance of the suit property. The third prayer is an
alternative prayer for possession, as the plaintiffs pleaded to
be in possession of the suit property. The second alternative
prayer is for damages and refund. The pleadings regarding
the cause of action is the notice issued by the plaintiffs on 8 th
June 2011 calling upon the defendant to specifically perform
the agreement dated 17th March 1999 and a subsequent
6/10
5-SA-439-2020 (1).docx
incident of 4th August 2011 to contend that the defendant was
personally called upon to execute the sale deed.
8. It is further contended by the plaintiffs that the
defendant refused to perform her part of the contract by
executing the sale deed and attempted to obstruct the
plaintiffs’ possession over the suit property. Thus, the cause
of action is pleaded for the purpose of seeking specific
performance of the contract. The substantial pleadings in the
plaint are based on the ground that, though the sale deed
and the agreement were executed, possession remained
with the plaintiffs. The prayer for possession is an alternative
prayer without any supporting cause of action for seeking the
prayer for possession on the ground of title, as required
under Article 65 of the Limitation Act, 1963.
9. A perusal of the plaint indicates that the entire claim is
based on the prayer for declaration that the sale deed was
illegal and for seeking specific performance for reconveyance
of the property. The plaint is bereft of any pleadings of any
cause of action for seeking possession based on title as
required under Article 65 of the Limitation Act, 1963. Though
the prayer for possession is in the alternative, there is
7/10
5-SA-439-2020 (1).docx
nothing on record to show that the plaintiff has selected one
of the prayers at the relevant time of framing issues or
recording evidence or at the time of final arguments. Hence,
based on the substantial prayer for declaration of the sale
deed to be illegal and the substantial prayer for declaration
and specific performance, both the courts have held that the
suit is barred by limitation.
10. For seeking a declaration that the sale deed of 1999
was illegal, the plaintiffs have not pleaded and proved any
cause of action, as required under Article 58 of the Limitation
Act, 1963. For seeking specific performance, even according
to the plaintiffs, the deed for reconveyance was to be
executed by making the last payment by 15 th March 2004. If
the plaintiffs’ case is accepted as it is, in view of the first part
of Article 54 of the Schedule to the Limitation Act, 1963, the
suit for specific performance was required to be filed within
three years from the date fixed for specific performance.
Even otherwise, admittedly, the payment was not made by
15th March 2004. Thus, Hence, even the prayer for specific
performance is rightly held to be barred by limitation. So far
as the alternative prayer for possession is concerned, even if
8/10
5-SA-439-2020 (1).docx
the plaintiffs did not elect one of the alternative prayers and if
the prayer for possession is to be considered as based on
title, the cause of action for seeking possession as per Article
65 of the Limitation Act is not pleaded and proved. Hence,
the legal principles settled by the Apex Court in Sopanrao
would not be of any assistance in the present case.
11. In the facts before the Apex Court, the substantive
prayer was for possession based on the title, and the prayer
was for seeking a declaration that the plaintiffs were
Inamdars of the suit land. In view of the pleadings and cause
of action regarding the prayer for possession and the cause
of action for the prayer for declaration, it was held that, in
view of Article 65, which deals with a suit for possession
based on title, the suit could not have been dismissed as
barred by limitation. However, in view of the different facts of
the present case, as discussed in the above paragraphs,
legal principles settled by the Apex Court would not apply in
the present case. In view of the concurrent findings recorded
by both the courts, the grounds argued on behalf of the
appellant would not require any consideration in this second
appeal.
9/10
5-SA-439-2020 (1).docx
12. The second appeal does not raise any substantial
question of law. Hence, the second appeal is dismissed.
[GAURI GODSE, J.]
10/10
Powered by TCPDF (www.tcpdf.org)
