1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.86 OF 1993 1 Shankarrao s/o Laxmanrao Dharkar, died, through his L.Rs.: 1a Vishnu s/o Shankarrao Dharkar, age: 42 years, Occ: Business, R/o Cantonment, Aurangabad. 1b Prabhu s/o Shankarrao Dharkar, age: 35 years, Occ: and R/o as above. 1c Rameshwar s/o Shankarrao Dharkar, age: 33 years, Occ: and R/o as above. 1d Tulsidas s/o Shankarrao Dharkar, age: 30 years, Occ: Business R/o as above. 1e Kamalabai w/o Chandrakant Salunke, age: 45 years, Occ: Household, R/o Bhaneshivra, Tq.Newasa, District Ahmednagar. 1f Shantabai w/o Shankarrao Dharkar, age: 65 years, Occ: Household R/o Cantonment, Aurangabad. 2 Jagannath s/o Laxmanrao Dharkar, deceased through L.R.: Rukhmanibai w/o Jagannath Dharkar, age: major, Occ: Household, R/o Nehru Chowk, Cantonment, Aurangabad. Appellants Versus 2 1 Vijayraj s/o Depchand Kankaria, died, through his L.Rs: (i) Smt.Chanchalabai w/o Vijayraj Kankaria, age: major, Occ: Household, R/o Mahavir Traders Merchant, Old Mondha, Aurangabad. (ii) Shailesh s/o Vijayraj Kankaria, age: major, Occ: Business, R/o as above. 2 Suvalal s/o Mishrilal Chhallani, age: major, Occ: Business, R/o Kushalnagar, Aurangabad. 3 Shantilal s/o Dagaduram Muthiyan, age: major, Occ: Business, R/o Metro Cloth Stores, Tilak Road, Aurangabad. 4 Fakkadchand s/o Harakchand Jain, Gurukrupa Cloth Stores, Nehru Chowk, Cantonment, Aurangabad. Mr.Manish Navandar, advocate holding for Mr.K.G.Navandar, Senior Counsel for appellants Mr.P.F.Patni, advocate for Respondents No.1(i). (ii), 2 & 4. Mr.S.S.Bora, advocate for Respondent No.3. CORAM: R.M.BORDE, J. DATE : 21st August, 2009. ORAL JUDGMENT: 1 This is an appeal by original plaintiffs raising exception to the concurrent judgments recorded by the Courts below. 3 2 Plaintiffs instituted suit bearing Regular Civil Suit No.375 of 1985 claiming decree of specific performance of contract in respect of agricultural land bearing G.No.54 admeasuring 29 acres 5 gunthas, situate at Maliwada, Tq. and District Aurangabad, to the extent of 4/5th share of the defendants, i.e. 23 acres 12 gunthas. Plaintiffs also seek relief in respect of possession of the land as well as for grant of perpetual injunction restraining defendants from interfering in peaceful possession of plaintiffs. It is the contention of plaintiffs that defendants no.1 to 4 along with one Premraj are owners and possessors of agricultural land G.No.54 admeasuring 29 acres and 5 gunthas, situate at Maliwada, Tq. And District Aurangabad. Defendants agreed to sell the land to the extent of 4/5 th share in land G.No.54 to the plaintiffs at the rate of Rs.625/- per acre. In pursuance to the agreement to sell, defendants executed Isar Pavti after receiving earnest amount of Rs.4,000/- on 15.03.1975. As per the terms contained in agreement of sale, it was necessary for the defendants to secure necessary permission from the competent authority and after securing such permission immediately they were required to execute the sale deed in favour of plaintiffs. The balance consideration was agreed to be paid at the time of execution of sale deed. It is also contended by plaintiffs that there was loan liability which was required to be discharged by defendants. As such, plaintiffs were required to deposit Rs.5142.21 with Land Development Bank. Thus, it is contended that plaintiffs have also remitted an amount of Rs.9142.21 and as per the agreement, total price of the land comes to Rs.14,562.44. Plaintiffs contend that they are willing to pay remaining amount of Rs.5420.23 to the defendant. Plaintiffs on several occasions requested defendants to accept the amount and execute registered sale deed and put them in 4 actual possession of the land in dispute. However, defendants did not act and avoided to execute the sale deed under one pretext or the other. Plaintiffs contend that they are ready and willing to perform their part of contract. Plaintiffs issued legal notice through advocate to the defendants calling upon them to execute sale deed. However, defendant did not pay any heed. As such, plaintiffs were constrained to file suit on 24.03.1985. 3 Defendants appeared and resisted the suit by filing written statement. The execution of agreement of sale is admitted by the defendants, however, according to defendants, plaintiffs have abandoned the agreement and did not take any steps for securing execution of the sale deed. It is contended that as per the agreement, Advocate Shri Kakade was entrusted with the work of securing necessary permission for execution of the sale deed. However, on inquiry, defendant found that no such permission for execution of registration of sale deed is necessary. Defendants, as such, asked plaintiffs to get the instrument of sale executed immediately. However, plaintiffs expressed their unwillingness and requested defendants to cancel the agreement. Defendants, considering cordial relations between the parties, cancelled agreement and refunded amount of Rs.4000/-, however, agreement remained with the plaintiffs and plaintiffs, taking undue advantage of the situation, have presented the suit. It is contended by defendants that plaintiffs were never ready and willing to perform their part of contract. Suit presented by plaintiffs is clearly beyond prescribed period of limitation and as such, prayed for dismissal of the suit. 5 4 The trial Court, after considering evidence placed on record by the parties, considered the issue, as to whether suit presented by plaintiffs is so presented within prescribed period of limitation and held that suit is barred by time. The trial Court observed that in view of Article 54 of the Limitation Act, suit ought to have been presented within three years from the date of accrual of cause of action. It was found by the trial Court that in spite of plaintiffs conceding before the Court that Advocate Shri Kakade having informed that no permission is required for executing the document of sale, still plaintiffs failed to take necessary steps for securing execution of document of sale. It was noticed by plaintiffs that permission is not necessary to be secured for execution of the sale deed, in the year 1977 itself, however, they failed to take steps for about eight years thereafter and did not even issue notice calling upon the defendant to execute the sale deed. Plaintiffs proceeded to issue notice calling upon the defendants to execute sale deed only in the year 1985 and thereafter presented the suit. Considering all these aspects, trial Court held that suit presented by plaintiffs is barred by limitation. The judgment and decree passed by the trial Court has been confirmed in Regular Civil Appeal No.49 of 1988, decided by IV Additional District Judge, Aurangabad on 10 th August, 1992. 5 At the stage of admission, this Court found that Grounds No.III, IV, V, VI, VIII, XV and XVI, involve substantial questions of law. However, learned Counsel appearing for appellants has restricted his argument and urged only the question as regards finding recorded by the trial Court in respect of limitation. It is urged by the Counsel for appellants that the Courts below have erred in holding that the suit 6 presented by plaintiffs is barred by limitation and according to the Counsel, the findings recorded by the Courts below, in that regard, are not in consonance with the provisions of Article 54 of the Limitation Act. 6 I have perused the judgments delivered by both the Courts below. That, so far as finding recorded by both the Courts below as regards limitation in presenting suit is concerned, I am of the opinion that the Courts below have adopted correct approach and recorded the finding, which cannot be faulted on any grounds. It is to be noted that agreement to sale has been executed on 15.03.1975. It is admitted by the plaintiffs also that as per the terms contained in the agreement, sale deed was to be got executed immediately after securing necessary permission from the appropriate authority. In order to secure permission, Advocate Shri Kakade was entrusted with the job of completing the formalities on behalf of the defendant. It is also an admitted fact that Advocate Shri Kakade informed the parties that it is not necessary to secure permission for executing the sale deed. Even after plaintiffs gained knowledge to the effect that for securing registration of instrument of sale, permission is not warranted, plaintiffs waited till the year 1985 i.e. almost for about eight years. In view of provisions of Article 54 of the Limitation Act, claim ought to have been lodged within three years from the date of refusal. Plaintiffs, however, did not act after 1977 and issued notice calling upon the defendant to perform his part of contract only in the year 1985. The contention raised, in these circumstances, by the defendant that plaintiffs, by their conduct, abandoned the claim, ought to be accepted. The cause of action for presenting suit arose in the year 1977 when plaintiffs were informed that it is not necessary to secure 7 permission from any authority for registration of the sale deed. The suit ought to have been presented at least within three years from 1977, however, plaintiffs waited for eight years for calling upon the defendants to execute the sale deed. In these circumstances, the trial Court found that suit presented by the plaintiffs is beyond prescribed period of limitation. It has also been found by the trial Court that from the circumstances appearing before the Court, it cannot be held that plaintiffs are ready and willing to perform their part of contract. The trial Court was, therefore, justified in rejecting the claim raised by plaintiffs. The first appellate Court has confirmed the finding recorded by the trial Court. In my view, approach of the Courts below is proper and the finding, recorded by both the Courts below on appreciation of evidence placed on record, do not call for any interference. 7 Appeal is devoid of substance. Hence stands dismissed. In the facts and circumstances of this case, however, there shall be no order as to costs. (R.M.BORDE) JUDGE ******* adb/sa8693