1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR SECOND APPEAL NO. 63 OF 2009 (Rajaram Ramlu Madikuntwar vs. Deorao Shamrao Raut through Ashok Deorao Raut & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. FEBRUARY 20, 2009. Heard Shri Joshi, learned counsel with Shri Dhatrak, Advocate for the appellant – original defendant, Shri Narwade, learned counsel for Respondent No.1 – Caveator. The Courts below have concurrently held against the appellant – defendant and found him not eligible to claim protection under Section 53-A of Transfer of Property Act. The contentions raised before this Court are that the notice dated 23.5.1989 by which agreement dated 14.6.1978 was terminated was issued beyond prescribed time as mentioned in Article 59 of Limitation Act and suit filed for recovery of possession in pursuance thereof was also therefore time barred. Second contention is that the suit was simpliciter for possession without seeking any clarification in relation to termination of agreement by notice dated 23.5.1989 and hence suit 2 was not maintainable. It is argued that had there been challenge to notice and to the contention that the termination was legal, the issue of limitation could have been specifically raised. The attention is invited to the judgment of the Hon'ble Madras High Court in the case of Raja Rajeswara Dorai @ Muthu Ramalinga Dorai vs. A.L.A.R.R.M. Arunachellan Chettiar, reported at 1913 ILR 38 M 321 in which the judgment of Privy Council in the case of Janki Kumar vs. Ajit Singh, (1888) ILR 15 Calc. 58 has been relied upon. The perusal of judgment of the Hon'ble Madras High Court shows that there the lease was contended to be vitiated by pointing out that it was procurred by practising undue influence. The issue of limitation has been considered in the background of this plea of undue influence. Here, on the date of agreement i.e. dated 14.6.1978, amount of Rs.8,187.50 was paid to the respondent – plaintiff and on 1.7.1978 further amount of Rs.8,000/- was paid and possession was handed over. The remaining amount was to be paid by 20.1.1979 and the remaining amount was Rs.26,312.50. The total sale consideration was Rs.42,500/-. It appears that nothing happened after 1.7.1978 and on 23.5.1989, the plaintiff issued notice terminating agreement 3 and also it appears that he called upon the appellant - defendant to pay balance amount with interest. Time till 11.6.1989 was given to pay balance amount. The said notice dated 23.5.1989 was not complied with and as the amount was not paid by 11.6.1989, on 3.8.1989, the suit for possession was filed. In the circumstances, it is apparent that the appellant / defendant was only in permissive possession and as such there is no question of provisions of Article 59 of Limitation Act being pressed into service. It is also apparent that as the agreement was terminated and suit was for possession, the prayer only for restoration of possession was made. Both the Courts have appropriately dealt with the evidence. I find that no substantial question of law arises in this Second Appeal. Second Appeal is dismissed. Shri Joshi, learned counsel for the appellant states that the appellant wishes to move the Hon'ble Apex Court in the matter and his possession may be protected for a period of six weeks more. Shri Narwade, learned counsel for respondent No.1 opposes the prayer for grant of any 4 interim order. However, as the appellant has been in possession for all these years, subject to the appellant depositing amount of Rs.50,000/- with the Registry of this Court by 31.3.2009, time till 30th April 2009 is given to the appellant to take further appropriate steps in the matter. The interim protection given to the appellant shall cease to operate automatically if the amount is not deposited or after the expiry of period as mentioned above. JUDGE *GS.