Second Appeal no.162 of 1996. 1 IN THE HIGH COURT OF JUDICATUTRE AT BOMBAY, NAGPUR BENCH NAGPUR. SECOND APPEAL NO. 162 OF 1996. APPELLANT: Abdul Kayyum s/o Abdul Hamid Patel, aged about 28 years, occu: Nil, r/o Ward No.6, Kalamb, Tq.Kalamb, Distt. Yavatmal. : VERSUS : RESPONDENTS: 1. Puranalal Harinarayan Jaiswal, aged about 52 years, Occupation - agriculturist and business, r/o Malipura Yavatmal, Tq. and Distt.Yavatmal. 2. Abdul Hamid s/o Sk.Hussain, aged about 61 years, Occu: Agrist, r/o Kalamb, Tq. and Distt.Yavatmal. (Dead) Legal Representatives. A. Smt.Hasina Bano wd/o Abdul Hamid, aged 60 years, r/o Patel Pura, Kalamb, Tq.Kalamb, Distt.Yavatmal. B. Smt.Fahimunnisa w/o Abdul Sattar, Second Appeal no.162 of 1996. 2 aged 42 years, Occu: Household, r/o Hanuman Nagar, Wardha, Tq. and Distt. Wardha. C. Smt.Mahrunnisa w/o Ikram Khan, aged 35 years, Occu: Household, R/o Hinganghat, near Water Tank, Bus Stand Distt.Wardha. D. Smt.Arefa Bano w/o Sk.Babbu, aged 32 years, r/o Ward No.5, Kalamb, Tq.Kalamb, Distt.Yavatmal. E. Smt.Najmunnisa w/o Abdul Sabir, aged 28 years, Occu: Household, R/o village Ashti, Tq.Arvi, Distt.Wardha. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Mr.M.Q.Qazi, Advocate for the appellant. Mr.C.S.Kaptan, Advocate for the respondents. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- CORAM: C.L.PANGARKAR,J DATED : 17th April, 2008. ORAL JUDGMENT: 1. This second appeal is by the plaintiff, who was Second Appeal no.162 of 1996. 3 unsuccessful in both the courts below. The parties shall hereinafter be referred to as plaintiff and defendants. 2. The facts giving rise to the appeal are as follows - The plaintiff is a Sunni Musalman. Defendant no.2 is the father of the plaintiff. The plaintiff was born on 9/10/1967. the plaintiff's grand-father had gifted the suit property to the plaintiff on 5/9/1974. He delivered the possession to the plaintiff which was accepted by defendant no.2. The house came to be recorded in the name of the plaintiff. When the property was gifted, the plaintiff was only seven years old. The plaintiff submits that Defendant no.2 - his father - sold the suit property to defendant no.1 by registered sale-deed dated 12/2/1982. The said property was sold by defendant without any legal necessity and without obtaining the permission of the District Judge. The plaintiff submits that the sale in favour of defendant no.1 is not binding on him and therefore, seeks to set aside the sale in favour of defendant no.1. Defendant no.1 resisted the suit by filing a written statement. Defendant no.1 denies that the suit property belonged to the grand-father of the Second Appeal no.162 of 1996. 4 plaintiff and he gifted the same to the plaintiff. He denies the date of birth of plaintiff to be 9/10/1967. He admits that the property has been sold to him. The defendant admits that defendant no.2 – the father – had applied to the District Judge for grant of permission but the said application came to be dismissed for default. It is contended that the proceedings for obtaining permission were unnecessarily prolonged and defendant no.2 was not ready to wait for the same. It is contended that the suit property has been purchased by him after paying the entire consideration to defendant no.2 and it was sold for legal necessity. 3. Defendant no.2 filed a written statement and admitted the claim of the plaintiff. 4. The learned Judge of the Trial Court found that the date of birth of the plaintiff was not 9/10/1967 but was 1/2/1967. He also found that the sale-deed in favour of defendant no.1 was not void. The suit was barred by law of limitation. It was properly valued. Holding so, learned judge of the Trial Court dismissed the Second Appeal no.162 of 1996. 5 suit. 5. The first appellate court also concurred with the findings of the Trial Court and dismissed the appeal. Being aggrieved by that, the plaintiff has preferred this second appeal. 6. The appeal was admitted on the following substantial question of law. “Whether the courts below were right in treating the entire suit to be beyond the limitation and were right in restricting their consideration only to Article 60 of the Limitation Act and ignoring Article 65 of the Limitation Act ?. 7. I have heard the learned counsel for the appellant and the respondents. 8. There are concurrent findings of fact in regard to the following propositions - (1) That the property was gifted to the plaintiff by his grand-father, (2) That the suit property was sold by the father of plaintiff to defendant no.1 by a registered sale-deed, Second Appeal no.162 of 1996. 6 (3) That no permission was obtained under the Guardian and Wards Act before the sale-deed was executed, (4) Date of birth of the plaintiff is 1/2/1967 and not 9/10/1967. 9. It is in this factual background that one has to see the substantial question of law on which the appeal was admitted. 10. The courts below have found that the date of birth of the plaintiff is 1/2/1967. They have found that the plaintiff became major on 1/2/1985. Both the courts by applying Article 60 of the Limitation Act found that the suit should have been brought within three years upon attaining majority. The suit is filed on 31/8/1988. The suit having been filed beyond period of three years from the date of attaining majority, as the property was sold during the minority of plaintiff, was barred by limitation. Although the courts below have found concurrently as a fact that the date of birth of the plaintiff was 1/2/1967, learned counsel for the appellant advanced argument on this point alone. He, in fact, did not advance any argument on the substantial question of law as to the application of Second Appeal no.162 of 1996. 7 Article of the Limitation Act. The argument of the learned counsel for the appellant on the question of date of birth has to be completely ignored since that is not the substantial question of law and there are concurrent findings of fact on that question. This court cannot once again look into the question of fact unless it is shown that it is perverse. In fact, it appears that the appeal was admitted on substantial question of law as to the application of Article 60 or 65, as argument to that effect must have been advanced because the plaintiff had a difficulty in overcoming the barrier of three years limitation under Article 60 of the Limitation Act. Although no argument with regard to application of Article 60 or 65 is advanced, one will have to decide it. If the tenor of the plaint is seen, it would be apparent that the suit is not based on title but plaintiff seeks to avoid the sale-deed and prays for setting aside the alienation made by his father. He wants the sale-deed to be set aside since, according to him, the property of minor was sold without obtaining the permission of the District Judge under the Guardian and Wards Act. In view of this specific pleadings, the case must fall under Article 60 of the Limitation Act. There is no scope Second Appeal no.162 of 1996. 8 to bring the case under Article 65 of the Act which deals with the suit based on title. There is no substance in the appeal. The substantial question of law is answered accordingly and the appeal is dismissed. No order as to costs. JUDGE. chute