( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 693 OF 2009 Abdul Kadar s/o Shaikh Chand APPELLANT VERSUS Shaikh Abdul Wahab s/o Abdul Karim and another. RESPONDENTS ..... Mr. S.V. Gangapurwala, advocate for the appellant. Mrs. P.V. Langhe, advocate holding for Mr. V.R. Langhe, advocate for respondents No. 1 and 2. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 10th November, 2009] PER COURT : 1. Heard counsel for the parties. 2. This second appeal arise out of the concurrent judgements rendered by the trial Court in suit (R.C.S. No. 1692/2000) and the first Appellate Court in appeal (R.C.A. No. 147/2003). ( 2 ) 3. The respondent is original plaintiff. Admittedly, the parties are closely related to each other in as much as father of the plaintiff (respondent) is maternal uncle of the appellant. There is also no dispute about the fact that the respondent owned plot bearing C.T.S. No. 1878. The case of the respondent (plaintiff) was that in the year 1995, the defendant (appellant) was unemployed and desired to go abroad for earning his livelihood. Since the defendant wanted to get passport and to show his status as owner of the property and also wanted to raise loan to meet out expenditure for traveling, a nominal sale-deed was executed in his favour on 14-11-1995. There was no intention of the parties to pass on title to him nor any consideration was paid by him. The plaintiff, therefore, sought declaration of his ownership and perpetual injunction on the basis of his title and lawful possession. Both the Courts found that the plaintiff was in possession to the execution of the defendant (appellant). The Courts below also found that the sale-deed was nominally executed with a view to assist the defendant to seek loan from the Bank. ( 3 ) 4. Mr. Gangapurwala submits that the suit was hopelessly barred by limitation in as much as it is covered by Article 59 of the Limitation Act, 1963. He would further submit that the plaintiff never alleged exercise of fraud, yet, the first Appellate Court considered such a plea without any substratum. He, therefore, submits that the substantial question of law involved in this second appeal relates to issue of limitation and as to the counter claim put forth by the appellant in respect of recovery of possession. 5. It is true that the suit was filed about five years after execution of the sale-deed. It has come on record that in the sale-deed, father’s name of both the parties was shown as same one with a view to indicate, prima facie, that they were real brothers, though they were not real brothers. It is also undisputed that the defendant (appellant) was unemployed at the relevant time. He could not prove source of income so as to raise the finance required for purchase of the suit property. It is pertinent to notice that now, there is structure ( 4 ) of three rooms on the suit property. There is no scintilla of evidence to show that the structure was raised by the appellant. Considering the attending circumstances and the deposition of PW2 Shaikh Shabbir, attesting witness of the document, the trial Court as well as the first Appellate Court held that the parties had no intention to pass on title of the suit property to the defendant. If it can be gathered that the sale was nominal, then it will have to be inferred that the plaintiff was not divested with his title notwithstanding execution of the said sale-deed. Obviously, he was not required to seek relief to set aside the sale-deed. The suit is not governed by Article 59 in as much as it was not for cancellation or setting aside the sale-deed or for recession of the contract. In fact, the very foundation of the case is that there was absence of any contract between the parties regarding the sale and that it was not an instrument for sale. In this view of the matter, the suit is squarely governed by Article 113 of the Limitation Act and, therefore, the limitation would commence from the date when the right to sue would accrue. In other words, when the title of ( 5 ) the plaintiff (respondent) was disputed by the appellant, the cause of action sprang up and from that day, the suit was in limitation. Considering these findings of fact and the relevant issue, the second appeal which arises out of concurrent judgements, is outside the scope of section 100 of the Civil Procedure Code. In view of “Arumugham (dead by L.Rs.) and others v. Sundrambal and another” (AIR 1999 S.C. 2216) and “Kashmir Sing v. Harnam Sing and another” (AIR 2008 S.C. 1749), as no substantial question of law is involved in this appeal, the appeal is not maintainable. Hence, the second appeal is dismissed. 6. In view of dismissal of second appeal, the civil application No. 3926/2008 does not survive and hence, stands dismissed accordingly. [ V.R. KINGAONKAR ] JUDGE NPJ/sa693-09