Bombay High Court

SHRI. GOPAL RAJARAM BODAKE AND ANR.versusSHRI. BHIKA BHIWA BODAKE AND ANR.

Decided: 14 August 2026
Disposal: Disposed Off

Holding

The court held that the suit was time‑barred and the appellants had no ownership, leading to dismissal of the appeal.

Summary

The appellants, brothers, filed a Special Civil Suit in 2008 seeking possession of a property that had been transferred to their uncle by a consent decree dated July 10, 1984. The decree arose from a 1982 partition suit in which the uncle’s son (Defendant No. 2) allegedly gave up his share, but the appellants claimed the decree was signed without the consent of a minor and a major plaintiff. After a 24‑year silence, the suit was filed, but the trial court found that the plaintiffs had no ownership interest and that the suit was barred by the limitation period. The appellate court affirmed these findings, noting that the proper remedy would have been to seek cancellation of the consent decree, not a fresh suit. No substantial question of law was raised, and the appeal was dismissed. Consequently, the related civil application was also disposed of.

Issues considered

Whether the Special Civil Suit filed in 2008 is barred by limitation.
Whether the consent decree of 1984 can be set aside to revive the partition claim.
Whether the appellants have any ownership right over the suit property.

Subjects

limitation period
consent decree
partition suit
property possession
time‑barred suit
civil appeal

Judgment

Vaishnavi                                              8SA-382-2017


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CIVIL APPELLATE JURISDICTION
                       SECOND APPEAL NO. 382 OF 2017
                                   WITH
                     CIVIL APPLICATION NO. 2032 OF 2015
                                     IN
                       SECOND APPEAL NO. 382 OF 2017

Shri. Gopal Rajaram Bodake and Anr.                  ...Appellants

                     V/s.

Shri. Bhika Bhiwa Bodake and Anr.                    ...Respondents
                                ________________
Mr. Rahul D. Motkari, for Appellant.
Ms. Siddhi Dawne i/b Mr. Rameshwar Gite, for Respondent No. 1.
                                ________________


                                           CORAM: SANDEEP V. MARNE, J.

                                           DATED: 14 AUGUST 2026


P.C.:


1)          By this Appeal, the Appellants have challenged the judgment and
decree dated 18 February 2015 passed by District Judge, Nashik,
dismissing Civil Appeal No. 224 of 2011 and confirming the decree dated
29 August 2011 passed by Civil judge, Senior Division, Nashik. The Trial
Court has dismissed Special Civil Suit No. 225 of 2008 filed by Plaintiffs
for recovery of possession of the Suit property.




                                    Page No.1 of 3
                                   14 August 2026
Vaishnavi                                              8SA-382-2017


2)          I have heard Mr. Motkari, the learned counsel appearing for
Appellants and Mr. Dawne, the learned counsel appearing for
Respondent No. 1.


3)          Appellants were Plaintiffs in Special Civil Suit No. 255 of 2008.
Appellants and Defendant No. 2 are real brothers. Defendant No. 1 in the
suit is their uncle. Father of Defendant No. 1 executed a Sale Deed dated
6 July 1979 conveying the Suit property in favour of the two Plaintiffs
and Defendant No. 2. The Defendant No. 1 instituted RCS. No. 198 of
1982 seeking partition and declaration that Sale Deed dated 6 July 1979
executed by his father was not binding on his share. A compromise took
place in RCS No. 198 of 1982 and compromise pursis was filed, on the
basis of which consent decree was passed on 10 July 1984, under which
Defendant No. 2 apparently gave away the Suit property to Defendant
No. 1. It is the case of Plaintiffs that Plaintiff No. 1 was major, but his
signature was not taken on consent decree and that, the Plaintiff No. 2
was minor. Based of consent decree, a mutation entry was effected
recording name of Defendant No. 1 against the Suit property.


4)          Plaintiffs apparently maintained silence for over 24 years and
woke out of their deep slumber in the year 2008 and filed Special Civil
Suit No. 225 of 2008 on 11 April 2008 against their own brother
(Defendant No. 2) and against Defendant No. 1. The Suit was hopelessly
time-barred. The real remedy for the Plaintiffs was to seek reopening of
RCS No. 198 of 1982 by seeking cancellation of the consent decree. A
fresh Suit was clearly not maintainable. The Suit was filed only for the
purpose of recovery possession of the property from Defendant No. 1.

                                     Page No.2 of 3
                                    14 August 2026
Vaishnavi                                                 8SA-382-2017




5)          The Trial Court and the Appellate Court have recorded concurrent
findings on the issue of absence of ownership in favour of the Plaintiffs
as well as the Suit being barred by limitation. No substantial question of
law is involved in the Second Appeal.


6)          The Appeal is accordingly dismissed. With dismissal of the
Appeal nothing survives in Civil Application No. 2032 of 2015, which is
also disposed of.




                                                     [SANDEEP V. MARNE, J.]




                                    Page No.3 of 3
                                   14 August 2026

Continue reading with your account

Checking your session…