: 1 : SD IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.904 OF 2007 SECOND APPEAL NO.904 OF 2007 SECOND APPEAL NO.904 OF 2007 WITH WITH WITH CIVIL APPLICATION NO.1243 OF 2006 CIVIL APPLICATION NO.1243 OF 2006 CIVIL APPLICATION NO.1243 OF 2006 Sampat Gopala Kanchan ...Appellant V/s. Eknath Shrirang Chavare & Ors. ...Respondents Mr.Sandesh Patil, Advocate, i/b. Vikas K. Mahanagare, for the Appellant. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 12TH MARCH, 2008. DATE : 12TH MARCH, 2008. DATE : 12TH MARCH, 2008. P.C.: P.C.: P.C.: 1. This Second Appeal is by the unsuccessful plaintiff in a suit for specific performance of agreement for sale dated 8th April, 1975. The Trial Court held that the agreement for sale was established by the appellant-plaintiff. The Trial Court also accepted the case that the appellant-plaintiff was placed in possession. The Trial Court, however, held that the appellant has failed to establish that father of the defendants accepted a sum of Rs.625/- from the appellant-plaintiff and orally agreed to transfer 1/4th share in the suit property in addition to the 3/4th share which was already agreed to be sold by him under the suit agreement. Even on readiness and : 2 : willingness, a finding was recorded by the Trial Court in favour of the appellant-plaintiff. The Trial Court negatived the plea of bar of limitation. However, the Trial court granted perpetual injunction and directed the defendants to execute the sale deed in respect of 3/4th share in the suit property in favour of the appellant-plaintiff. 2. The Appellate Court has interfered. The Appellate Court held that the agreement was in the nature of a loan transaction. The Appellate Court disbelieved the case of the appellant-plaintiff that he was placed in possession of the suit property on the date of execution of the suit agreement. The Appellate Court held that the suit was barred by limitation. Therefore, the Appellate Court allowed the Appeal and dismissed the suit. 3. The learned Counsel appearing for the appellant has made submissions on merit as well as on the issue of limitation. He submitted that the Appellate Court has wrongly casted the burden of establishing that the suit was not barred by limitation on the appellant-plaintiff. He submitted that it was for the respondents-defendants to prove that the time was essence of the contract. He : 3 : submitted that the Appellate Court could not have relied upon the statements of the defendants recorded in the mutation entry proceedings and the said statements were rightly discarded by the Trial Court. 4. He submitted that in any event the first prayer in the suit was for perpetual injunction and the Appellate Court ought to have protected the possession of the appellant over the suit property by invoking Section 53-A of the Transfer of Property Act, 1882. 5. I have carefully considered the submissions. In sofar as prayer for specific performance is concerned, the suit will be governed by Article 54 of the Limitation Act, 1963. There is no finding recorded by the Appellate Court that the time for performance fixed in the agreement was the essence of the contract. The Appellate Court has held that the suit is not filed within a period of three years from the date on which the appellant-plaintiff had notice that the respondents had refused to perform their part of the agreement. As pointed out earlier, the said agreement is of 8th April, 1975 and suit was filed by the appellant-plaintiff on 12th November, 1986. The : 4 : Appellate Court found that the appellant-plaintiff had applied to the Tahsildar for mutating his name in the revenue records. The said application was made on 19th August, 1981. The Tahsildar recorded a statement of the 1st respondent on 11th September, 1981 in the said proceedings. The said statement is produced before the Trial Court at Exhibit-87. In the said statement, the 1st defendant-1st respondent stated that the appellant got executed the agreement of sale from their father by deceiving their father and that the defendants have not agreed to execute the sale deed. The said statement made by the 1st respondent clearly shows that the respondents had declined to execute the sale deed. It is obvious that the plaintiff cannot plead ignorance of the contents of the said statement made on 11th September, 1981 as the same was recorded in the proceedings filed by him. That is the reason why the Appellate Court held that the appellant-plaintiff had notice at-least on 11th September, 1981 that the respondents have declined to execute the sale deed. Therefore, the suit ought to have been filed within a period of three years from the date of notice i.e. 11th September, 1981. The fact that subsequently a notice was served by the appellant in the year 1986 is not at all relevant for deciding the issue of limitation as the limitation : 5 : started running on 11th September, 1981. 6. Turning to the other submission regarding relief of perpetual injunction, it must be noted here that the specific case made out by the appellant is that the father of the respondent Nos.2 to 4 agreed to execute an agreement for sale in respect of his 3/4th share in the suit land. Another case made out by the appellant was that the father of the said respondents had orally agreed to sell remaining 1/4th land by accepting amount of Rs.625/-. The said case as regards oral agreement in respect of 1/4th portion of the land has been disbelieved by both the Courts below. Apart from this, there is no finding recorded by the Trial Court that a separate 3/4th share of the vendor of the appellant was carved out after effecting a partition. In fact, finding of fact recorded by the Appellate Court is that the appellant was not placed in possession of the suit property on the date on which the suit agreement was executed. While recording this finding, Appellate Court has also referred to the entries made in the revenue records. 7. Therefore, there is no merit in the Second Appeal and the same is accordingly dismissed. : 6 : 8. In view of dismissal of the Appeal, Civil Application No.1243 of 2006 does not survive and the same is disposed of. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]