1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.779 OF 2008. Hakim S/o Bahauddin and another ... Appellants. Versus Sk.Habib S/o Sk.Amir and others ... Respondents. ... Mrs.S.D.Tambat-Dhumal, advocate for the appellants. Mrs.A.N.Ansari, adocate for the Respondents. ... CORAM : V.R.KINGAONKAR,J. Date : 30.11.2009. PER COURT 1. Heard counsel. 2. The appellants are original defendants. The Respondents filed suit (RCS No.159/2003) for specific performance of agreement of sale in respect of agricultural land bearing Gat No.217 2 to the extent of 6 (six) hectares - 49 Ares, situated at village Rawna. Allegedly, both the defendants (appellants) agreed to alienate the said suit land for consideration of Rs.40,000/- (Rupees forty thousand). The defendant No.1 executed an agreement of sale (Isar Chithi) on 11.3.1996. It was alleged by the plaintiffs that out of the agreed consideration amount substantial portion of Rs.30,000/- (Rupees thirty thousand) was paid by way of earnest money. It was contended that due to internal relationship, the execution of registered sale deed was not immediately pressed into service and that the demand was put forth in year 1999 but the defendant No.l avoided to perform his part of the agreement. As he had put off execution of the registered sale deed, the plaintiffs claimed to have relied on his words. However, on 24.9.2003 a public notice was read in the local newspaper called Daily Lokmat and, therefore, it came to the knowledge of the plaintiff that the defendant No.1 intended to alienate the suit land in favour of someone else. Consequently, they filed suit for specific performance of the agreement of 3 sale. 3. The contentions of the defendants were that the defendant No.1 never signed agreement of sale. They asserted that signature of the defendant No.1 was forged and a false document was created with a view to grab the suit land. They denied that amount of Rs.32,000/- (Rupees thirty two thousand) was paid to him by way of earnest money. They submitted that the suit is false and vexatious. Consequently, they sought dismissal of the suit along with compensatory costs as provided U/s 35-A of the C.P.C. 4. On the basis of material placed on record, the trial Court came to the conclusion that the agreement of sale was duly proved. The trial Court also held that due to relationship between them, the plaintiffs wanted waited for due compliance of the terms of the agreement by the defendant No.1 but lastly, after the publication of the notice in the newspaper, they were dismayed and as such the suit was within limitation from the date of refusal of the performance of the agreement. The trial Court 4 decreed the suit holding that the defendant No.1 was liable to perform his part of the agreement inasmuch as he committed breach thereof. The first appellate Court confirmed the findings of the trial Court. It is against such concurrent findings that the original defendants have come up in the Second Appeal. 5. It is contended on behalf of the appellants that issue of limitation is the substantial question of law involved in this appeal. It is also contended on their behalf that the plaintiffs readiness and willingness is not proved and as such non-compliance of Section 16(c) of the Specific Relief Act, 1963 is also one of the substantial question of law involved in the Second Appeal. It is further contended that the question of legal necessity is also involved in the Second Appeal. The learned counsel would submit that the question of limitation can be considered at any stage and particularly it was the duty of the Court to raise such question when specific performance was sought after considerable period since the suit 5 was filed on 6.10.1996 and there was no much satisfactory explanation about the delay. I find it difficult to countenance the argument of the learned counsel for the appellants. First, the defence of the defendants was founded on the contention that agreement itself was forged and, therefore, there was no question of specific performance of the agreement. No issue regarding limitation was raised in the defence nor I find such a ground put forth in the appeal memo filed in the first appellate Court. Similarly, the appeal memo filed in the first appellate Court does not show, even remotely, that non-compliance of Section 16(c) of the Specific Relief Act was put forth as a ground in defence of the appellants. As a matter of fact, when the substantial amount of Rs.32,000/- (Rupees thirty two thousand) was paid by the plaintiffs and only small part of the consideration of Rs.8,000/- (Rupees eight thousand) remained unpaid, such conduct on their part is indicative of their readiness and willingness. It was never alleged that they were not ready to pay the balance amount and to get the registered sale deed 6 executed. Thirdly, the question of limitation is always a mixed question of law and facts in the case like present one. It has relations with the refusal on the part of the defendant No.1 to comply his terms of the agreement. It is uncontroverted that the public notice was issued by him in the local newspaper for the first time on 24.9.2003. Obviously, till then there was no express refusal communicated to the plaintiff and, therefore, the question of limitation could not be raised in view of Article 54 of the Limitation Act which provides three (3) years period of limitation from date of refusal of the compliance. There is also no question of legal necessity as such because it is not a joint Hindu family property. The parties are Mohammedans and no serious objection was raised in this behalf, during the course of the trial, and, therefore, it is not open to ventilate such grievance at this stage. 6. Considering the foregoing reasons and in view of "Gurdev Kaur and others Vs. Kaki and others" AIR 2006 Supreme Court 1975, the 7 concurrent findings of the Courts below need not be disturbed. The appeal is outside the scope of Section 100 of the C.P.C. and as such is dismissed. No costs. (V.R.KINGAONKAR,J.) asp/office/sa77908