1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 285 /2009 (Suryabhan Tulshiram Ekre VERSUS Jagdev Kunjal Kewat) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri M.P. Khajanchi, counsel for the appellant. Shri P.N. Shende, counsel for the respondent. CORAM : SMT. VASANTI A. NAIK, J. DATE : AUGUST 11, 2009. Heard the learned counsel for the parties. By this appeal, the appellant challenges the judgment passed by the trial Court rejecting the plaint filed by the plaintiff, under Order VII Rule 11 (d) of the Code of Civil Procedure as also the judgment passed by the first appellate Court dismissing the appeal filed by the appellant against the judgment passed by the trial Court on 10.10.2008. In the instant case, the suit was instituted by the appellant-plaintiff in the year 2008. The plaintiff had filed a suit for a direction to the respondent to execute a re-conveyance deed. It was the case of the plaintiff that he had obtained a loan of Rs.10,000/- from the respondent in 2 the year 1993 and after one year, an amount of Rs.16,500/- was to be repaid to the defendant. Towards the security for the loan, according to the plaintiff, the defendant had got executed a registered sale-deed in respect of the suit property from the plaintiff. It was then pleaded in the plaint that the defendant had promised to execute a deed of re-conveyance after the amount was repaid by the plaintiff to the defendant. The plaint recited that this agreement was oral. It is pleaded by the plaintiff that the plaintiff had repaid an amount of Rs.16,500/- within a period of one year from 15.02.1993, on which date, the loan of Rs.10,000/- was advanced to the plaintiff. It is also pleaded in the plaint that the cause of action arose in the year 1994 when the defendant avoided to execute the sale-deed in favour of the plaintiff. It was also pleaded that the cause of action thereafter arose on 17.08.2007, 29.08.2007 and 05.02.2008. On the perusal of the plaint, it appears that an application was filed by the respondent for rejection of the plaint on the ground that it was barred by limitation. The trial Court, on an appreciation of the plaint filed by the appellant-plaintiff, came to a conclusion that the suit was barred by limitation and the plaint was liable to be rejected. 3 The judgment passed by the trial Court was challenged by the appellant in an appeal before the District Judge, Warora. The appeal was also dismissed. It appears, after hearing the parties for some time and after perusing the plaint and the two judgments, which are challenged in this appeal, that the suit of the plaintiff was obviously barred by limitation. It is categorically pleaded by the plaintiff in the plaint that the defendant had advanced an amount of Rs.10,000/- to the plaintiff on 15.03.1993 and had promised to re-convey the property after one year, after the repayment of an amount of Rs.16,500/-. It is also categorically pleaded by the plaintiff in the plaint that the amount of Rs.16,500/- was paid by the plaintiff to the defendant in the first week of March-1994. The pleadings in paragraph 5 of the plaint are important for deciding the issue, as it is stated in paragraph 5 of the plaint that the cause of action arose to the plaintiff in the year 1994 when the plaintiff had sought for the re-conveyance of the contract and the defendant had avoided to execute the sale-deed in favour of the plaintiff. In view of this pleading, it was clear that the cause of action for filing the suit for re-conveyance of the contract arose in the year 1994 and the suit filed by plaintiff in the year 2008 was clearly barred by limitation. 4 Both the Courts committed no error in holding on the basis of the pleadings in the plaint that the suit was barred by limitation. The submission made on behalf of the appellant, that it was necessary for the trial Court to permit the parties to tender evidence on the issue of limitation as it was a mixed issue of law and facts, is liable to be rejected for the reason that on the basis of the pleadings in the plaint itself, it was more than clear that the suit filed by the plaintiff was barred by limitation and tendering of any evidence in this case would have been a futile exercise. The judgments reported in (2009) 5 SCC 462 and (2006)3 SCC 634 and relied on by the counsel for the appellant do not have any application to the facts of this case. The findings recorded by both the Courts are pure findings of facts based on a proper appreciation of the plaint-pleadings and they do not give rise to any substantial question of law. In the result, the second appeal fails and is dismissed with no order as to costs. JUDGE APTE