1 (SA459.89) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.459 OF 1989 Shashikant Vyankatrao Jadhav since deceased, represented by his heirs and legal representatives:- 1. Smt. Surekha S. Jadhav, Age 50 years, 2. Shri Prasad Shashikant Jadhav, Age 30 years, 3. Shri Pravin Shashikant Jadhav Age 28 years, 4. Shri Pradip Shashikant Jadhav, Age 26 years, Resident of B/o. CTS No.2018, ‘D’ Ward, Dangari Building, Shukrawar Peth, Kolhapur ....Appellant (Orig. Defenant) V/s Adinath Govind Jadhav since deceased: through his heirs:- 1. Shri Vijaykumar Adinath Jadhav Resident of 664, Line Bazar, ‘E’ Ward, Kolhapur, 2. Smt. Laxmibai Adinath Jadhav Since deceased, represented by her heirs viz Respondent Nos.1, 2 (SA459.89) 3, 4, 5 & 6, 3. Balasaheb Adinath Jadhav, 4. Smt. Akkatai Shamrao Jadhav, 2 to 4 Resident of 14th Lane, Jaysnghpur 5. Sou Pushpa Shankarrao Mane, Resident of Kolhapur 6. Sou Vijaymala Pandit Shinde, Resident of Rajarampuri, 12th Lane, ‘E’ Ward, Kolhapur. All Respondents Nos. 1 to 3 and 5 Resident of H. No.0.664, CTS No.979 and 981, ‘E’ Ward, Line Bazar, Kolhapur, Amended vide Court’s Order dated 11.8.1992 in C.A. No.3352 in S.A. ..... Respondent. No.459/89. (Orig Plaintiff) ---- Mr. K.V. Saste for the appellant. Mr. Gajanan M. Savagave for Respondent Nos. 1, 3 to 7. ---- CORAM: V. M. KANADE, J. DATE : 11th February, 2011 ORAL JUDGMENT: 1. Appellant is the original Defendant and Respondent is the original Plaintiff. For the sake of convenience, parties shall be referred to as “Plaintiff” and “Defendant”. 3 (SA459.89) 2. Plaintiff had initially sold the suit property to original Defendant for consideration of Rs 15,000/- on 08/11/1971. By a separate agreement, which was executed on the same day, Defendant agreed to re-convey the property in favour of the Plaintiff after one year of the sale but within 10 years. 3. In view of second agreement which was executed between the parties, Plaintiff filed Regular Civil Suit No.92 of 1982 for specific performance of the agreement dated 8/11/1971 in the Court of Civil Judge, Junior Division, Kolhapur. By the judgment and order dated 29/09/1987, the said suit was decreed by the Trial Court. Defendant challenged the said judgment and order by filing an appeal being Regular Civil Appeal No.306 of 1987. This appeal was also dismissed by the 4th Additional District Judge, Kolhapur by judgment and order dated 18/03/1989. 4. I have heard the learned Counsel appearing on behalf of the appellant. 4 (SA459.89) 5. Both the Courts below have recorded the concurrent finding of fact about execution of the agreement by the Plaintiff and Defendant dated 08/11/1971 whereby Defendant had agreed to re-convey the property to him. The Court has also held that the Plaintiff was ready and willing to perform his part of the contract. The Lower Court has observed that the Plaintiff has examined himself and has stated in his evidence that in the year 1971, he was in financial difficulties and, therefore, he had sold the suit property to the Defendant since the Defendant’s father was a money lender. The document also clearly shows that, in the recital, it was stated that the Plaintiff, in order to discharge the loan of others, had sold the suit property for a sum of Rs 15,000/-. Further, in his evidence, Plaintiff has stated that on the very same day, the Defendant and the Plaintiff executed sale deed in the form of an agreement which was reduced into writing wherein Defendant agreed to re-convey the property to the Plaintiff after one year but within 10 years of payment of amount of Rs 15,000/-. 5 (SA459.89) Defendant, though, he denied the execution of the said agreement of sale, admitted that the stamp paper over which the agreement was entered into was purchased by him and he had put his signature, though he denied the signature at the bottom of the agreement. The Court has noted that even the Defendant went to the extent of denying his signature over his own Written Statement. The Court, thereafter, compared the signatures of the Defendant on various papers including Written Statement, vakalatnama and came to the conclusion that the Defendant had signed these documents. Further, the Trial Court has noted that the Plaintiff had, on several occasions, showed his desire to pay the amount of Rs 15,000/- to the Defendant and asked him to re-transfer the suit property in his name and when he found that the Defendant was avoiding to act as per the terms and conditions of the agreement, notice dated 6/11/1991 was served upon him calling him to re-transfer the suit property and asking him to remain present in the office of Sub-Registrar on 7/11/1991. Plaintiff has stated that he remained present in the office of the Sub-Registrar 6 (SA459.89) with the amount to complete the transaction but Defendant did not turn up and, thereafter, immediately, within one year the suit was filed. This finding has been confirmed by the Lower Appellate Court after taking into consideration Article 54 of the Limitation Act and the Lower Appellate Court held that the suit was filed within three years from the date on which the limitation began i.e on 08/11/1981. 6. Though, while admitting this second appeal, one of the substantial questions of law raised was “whether the suit filed by the respondent/plaintiff was within time?”, the said question, in my view, is a mixed question of fact and law and both the Courts below have appreciated the facts of the case and the evidence led by both parties and came to the conclusion that the suit was filed within limitation i.e. within three years from the date fixed for performance. The last date which was fixed for performance was 08/11/1981. The suit was filed within three years and, therefore, it was clearly filed within limitation. 7 (SA459.89) 7. The second question which has been framed is : “whether in the event of the Plaintiff being entitled to specific performance, the Defendant was liable to be reimbursed for expenses incurred in effecting permanent improvements in the land - if proved and if so, to what extent?” Defendant had never raised this point in his Written Statement. He also has neither raised this point in the appeal memo before the Lower Appellate Court nor in the grounds of objection raised in the appeal memo filed in this Court. In my view, therefore, it will not be open for the Defendant to raise this question in second appeal. 8. So far as the third question i.e “whether decretal direction for ascertainment of pendente-lite and future Mesne profits is legal and proper?”, which was framed by the learned Singe Judge is concerned, it has to be noted that though the Trial Court has answered Issue No.4 regarding grant of mesne profits, Trial Court had held that the Plaintiff was entitled to receive future mesne profits from the date of the suit till possession was handed over to him by way of 8 (SA459.89) separate enquiry under Order 20 Rule 12(1)(c) of the Civil Procedure Code. The Lower Appellate Court does not appear to have confirmed the said finding and has only awarded costs to the Plaintiff in the suit as well as in the appeal. In my view, therefore, to that extent, the Lower Appellate Court has modified the order of the Trial Court and, as such, the said point, therefore, does not fall for my consideration. 9. In my view, no substantial question of law is raised in this Second Appeal. Second Appeal is dismissed. (V.M. KANADE, J.) 9 (SA459.89)