1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 206 OF 2006 Sidram s/o Shamrao Narwate (deceased through LRs) & another .. APPELLANTS VERSUS Kashinath s/o Apparao Gound (deceased through LRs) & others .. RESPONDENTS Shri S.S. Choudhary, Advocate for the appellants. ===== CORAM : R. M. BORDE, J. DATE : 5 th August, 2009. PER COURT : 1 This is an appeal by original plaintiff raising exception to the concurrent judgments recorded by the courts below. 2 Suit is filed by the plaintiffs claiming ownership as well as injunction in respect of six tamarind trees allegedly belonging to the plaintiffs. Trial court although answered the issue in respect of existence of tamarind trees in gat 2 no. 62A allegedly owned by plaintiff, in affirmative, however, proceeded to dismiss the suit on the ground that the same is presented beyond prescribed period of limitation. It is observed by the trial court that the suit was instituted on earlier occasion being Regular Civil Suit no. 13/2009 in respect of the same subject matter. However, the suit was withdrawn with liberty to file fresh suit founded on the same cause of action. After withdrawal of the suit in the year 1969, plaintiff waited till 1987 for presenting the instant suit. Trial court relying upon Article 58 of the Limitation Act held that the suit presented by the plaintiff is beyond prescribed period of limitation. View adopted by the trial court has been confirmed by the first appellate court while dealing with Regular Civil Appeal no. 36/2005. 3 I have perused the judgment recorded by both the courts below. Shri Choudhary, learned counsel for the appellants has canvassed that Article 65 of the Limitation Act is applicable to the facts of the instant case which gives limitation for period of 12 years. However, as the suit is not for possession of the immovable property, Article 65 will not be attracted and the courts below were right in their approach in holding that Article 58 is applicable to the facts of the instant case. No substantial question of law arises for consideration of the appeal. Appeal therefore stands dismissed summarily. 3 4 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa206.06.odt