IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.111 OF 2004. APPEAL NO.111 OF 2004. APPEAL NO.111 OF 2004. Popat Nama Bansode & Anr. ...Appellants Versus. Imam Moruddin Musande & Ors. ...Respondents Shri Dilip Bodake for the Appellants. Shri M.S.Lagu for the Respondents. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. 14th 14th 14th February, 2008. February, 2008. February, 2008. P.C.: P.C.: P.C.: 1. Heard the advocate appearing for the appellants-plaintiffs. The appellants-plaintiffs filed a suit for declaration that the documents dated 18th January, 1979 and 13th September, 1982 executed by them in favour of the respondents-defendants were in the nature of a mortgage. The first prayer in the suit was for redemption of mortgage. In the alternative it was prayed that the respondent should be directed to execute a Deed of Reconveyance. Further prayer in the alternative was that it be declared that the Sale Deeds dated 18th January, 1979 and 13th September, 1982 are illegal and void and the respondents should be directed to handover possession of the suit property to the appellants-plaintiffs. 2. The trial Court partly decreed the suit by holding that the Sale Deeds dated 18th January, 1975 and 13th September, 1982 are void being in contravention of : 2 : 2 : 2 : section 48 of Maharashtra Co-operative Societies Act, 1960. The trial Court however held that the aforesaid documents are not in the nature of a mortgage and the said documents represent a transaction of out and out sale. The trial Court also held that there was no document executed by the defendants under which they agreed to reconvey the suit property in favour of the appellants. Therefore, the substantive prayer as well as prayer made in the alternative were rejected by the trial Court. There was no appeal or cross-objection preferred by the appellants-plaintiffs for challenging that part of the decree of the trial Court by which first two prayers made by the appellants were rejected. In the appeal preferred by original first and second defendants, the appellate Court has interfered and has held that Sale Deed cannot be held to be void. 3. The submission of the learned advocate appearing for the appellants is that even the appellate Court has found that on the date on which Sale Deeds were executed, there was a charge on the suit property created in favour of the Land Development Bank. He, therefore, submitted that the sale was in contravention of clause (d) of section 48 of the said Act of 1960. Relying upon clause (e) of section 48 he submitted that sale effected by the appellants in favour of the first and second respondents was void. He, therefore, : 3 : 3 : 3 : submitted that even going by the findings of the Appellate Court sale was void and therefore, a declaration to that effect granted by the trial Court and consequential relief of possession granted by the trial Court could not have been set aside by the appellate Court. 4. I have carefully considered the submissions. It is true that there is a finding of fact recorded by the Appellate Court that after the execution of the aforesaid Sale Deeds, an entry of the charge of the Bank on the suit property was removed as a consequence of payment of outstanding dues. It must be noted here that the suit was filed by the appellant on 09th October, 1987 claiming declaration as regards documents executed in the year 1979 and 1982. In paragraph No.14 of the judgment of the Appellate Court, a finding has been recorded that the prayer for declaration as regards the Sale Deed was barred by limitation. Going by the own case of the appellants, they were always aware of the execution of the said documents. It is not their case that they came to know of the alleged invalidity of the said documents subsequently. Therefore, the prayer for declaration was rightly held by the Appellate Court as barred by limitation. In any event, the contention that the sale deeds were void in view of clause (d) of section 48 of the Act of 1960 could have been raised : 4 : 4 : 4 : only by the Bank in whose favour the charge was created. The appellants who had executed the said documents had no locus to raise the said contention. 5. As the substantive relief of declaration was barred by limitation, the Appellate Court was right in setting aside the decree of declaration. The prayer for possession was a consequential prayer. 6. The relief of declaration under section 34 of the Specific Relief Act, 1963 is always a discretionary and equitable relief. Though the appellants executed Sale Deeds in favour of the defendants, initially a stand was taken by the appellants that the documents were in the nature of mortgage. The finding of both the courts below is that the appellants have received the consideration under the Sale Deeds. No error can be found in the judgment of the Appellate Court by which the decree of declaration passed by the trial Court has been set aside. No substantial question of law arises. Second Appeal is dismissed. No orders as to costs. Judge. Judge. Judge.