IN THE HIGH COURT OF JUDICATURE AT BOMBAY VPH CIVIL APPELLATE JURISDICTION SECOND APPEAL No. 616 OF 2007 Jaysingh R. Pawar & Ors. Appellants Vs. Sadashiv R. Pawar & Ors. Respondents Mr. Yogesh P. Mankavte i/b A. J. Chougule, for the appellant. CORAM : ANOOP V. MOHTA, J. DATE : JUNE 26, 2008 PC . This is a second appeal filed by added defendant No. 7, who is one of the legal heir of the original defendant, who had entered into an agreement for sale with the plaintiff. Based on the material available, the trial Court by order dated 23th April, 1990 decreed the suit and ordered that the plaintiff should be entitled to get executed the sale deed of the suit land from the defendants, within three months from the date of the decre. The appellant in whose favour the deceased/ original defendant executed will on 16th October, 1971, basically contested the proceeding, on the ground of limitation also. No other heirs of the deceased contested the suit. The trial Court after considering the submissions and the issues with regard to the defendant No. 7/appellant herein, specifically held that though there is a will, still the claim of - 2 - the plaintiff is barred by limitation is not correr by referring to section 21(2) of the Limitation Act as under - "So far as this issue is concerned Ld. Adv. Shri V. G. Gujar appearing on behalf of defendants, made futile efforts to argue on the point of limitation relying on the provisions contained in Section 21 of the Limitation Act, 1963. Section 21 of the Limitation Act reads as follows:- (1) Where, after the institution of a suit, new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party Provided that where the Court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith, it may direct that the suit as regards such plaintiff or - 3 - defendant shall be deemed to have been instituted on any earlier date. (2) Nothing in sub-section (1) shall apply to a case where a party is added or substituted owing to assignment or devolution of any interest during the pendency of the suit or where a plaintiff is a defendant or defendant is made a plaintiff. Learned Advocate Shri V. G. Gujar submits that defendant No. 7 was added as defendant quite after the long time and therefore the limitation starts from the time he was added as party as defendant. Defendant No. 7 was added on 1.9.88 as defendant. Ld. Adv. Shri V. G. Gujar further submits that article 54 of the Limitation Act provided for 3 years limitation and as such suit against the defendant No. 7 is barred by the Limitation Act. I have already mentioned section 21 and bare reading of sectrion 21 show that it does not apply to the defendant No.7 addition in the suit as party. Sub-section 2 of the Act makes it clear - 4 - that the section has no application to the case where party is added or substituted owing the assignment or devolution of any interest, during the pendency of the suit. Therefore, submissions made by Ld. Adv. Shri V. G. Gujar, on the point of limitation are without any substance and therefore, required to be totally brushed aside. I, therefore, held that suit against defendant No. 7 is barred by principles of Limitation and hence, my finding on issue No.12 is in negative." 2. Appeal against the judgment and decree of the trial court also resulted into dismissal. The first appellate court also confirmed that the plaintiff is in possession of the suit property on the date of amendment., he is also in possession of the suit property on the date of suit itself. He was and is ready to perform his part of contract and thre is no bar of the provisions of the Bombay Prevention of the Fragmentation and Consolidation of holdings, and thereby granted the decree of specific performance as prayed. The submissions of the appellant that it was loan transaction, including the amount/price of the suit property, and point of limitation were also negatived. As observed above, as there is no question - 5 - of law involved in the present matter, there is no need to interfere with the findings of both the courts below. Second appeal is therefore, dismissed. Sd/- [ANOOP V. MOHTA, J.]