1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.512 OF 2007 Sou.Kamal Dadaji Ghadge & anr. ..Appellants V/s. Shantabai Anandrao Bhosale ..Respondent Mr.Vinod Jadhav, advocate, for the appellants None for respondent CORAM : A.S.OKA, J. DATE : 27TH MARCH, 2008 P.C. . The Second Appeal was argued on the last date and was adjourned to enable the advocate for the appellants to produce a copy of the Sale Deed. He states that he had instructed the local advocate of the appellants to get a copy of the Sale Deed. However, there is no response till today. 2. The appellants are the original plaintiffs. The suit for the declaration, possession and injunction filed by the appellants has been 2 dismissed by the Trial Court and the decree of the Trial Court has been affirmed in the Appeal. 3. According to the case of the appellants, the suit property is an ancestral property of the second appellant. The first appellant is the wife of the second appellant. The second appellant was indebted. The name of the first appellant was entered in revenue record in respect of 1/2 share in the suit property. According to the case of the appellants, at the instance of his creditors, the second appellant mortgaged 1/2 portion on the Southern side of the suit property in favour of one Mr.Pandurang Pawar. According to the case of the appellants, the first appellant continued to cultivate the remaining 1/2 portion. As a security for the loan, the second appellant executed a Sale Deed on 10th December, 1984 in favour of the defendant/respondent. According to the case of the appellants, the Sale Deed was not to be acted upon and it was to be cancelled after repayment of the 3 loan amount by the second plaintiff/second appellant. It is the case of the appellants that they were ready and willing to repay the amount. The respondent took forcible possession and that is why a suit for declaration is filed by the appellants claiming that the Sale Deed dated 10th December, 1984 was not binding on them and for consequential relief of possession. The suit was resisted by the respondent by filing the Written Statement. It is the contention of the respondent that there was a genuine sale in her favour on 10th December, 1984 and her name was mutated in revenue record. 4. The Trial Court recorded a finding that the appellants have failed to prove that the Sale Deed dated 10th December, 1984 is null and void and that it was not to be acted upon. The Trial Court held that the suit was barred by limitation. The findings of the Trial Court have been confirmed in appeal. The submission of the learned advocate for 4 the appellants is that the evidence on record shows that the real nature of the transaction between the parties was in the nature of a mortgage. He submitted that the Courts below have committed an error by holding that the transaction was out and out sale. He submitted that the findings recorded by the Courts below on the issue of limitation are erroneous as article 59 of the Limitation Act is not applicable. 5. I have carefully considered the submissions. The finding of the fact recorded by the Courts below on the basis of appreciation of oral evidence on record is the suit transaction was not in the nature of mortgage. In the suit, a declaration was claimed as regards invalidity and illegality of Sale Deed dated 10th December, 1984. Therefore, the Courts below and in particular the Appellate Court was right in holding that Article 59 of the Limitation Act, 1963 will apply. The Courts below found that the appellants have not at all explained 5 as to how cause of action arose on 1st May, 1990 when the execution of the said document by the second plaintiff on 10th December, 1984 was admitted. The suit was filed in the year 1991. As the substantive prayer for declaration made in the suit was held to be barred by law of limitation, there was no occasion for the Courts below to consider the consequential prayer for possession. 6. In view of concurrent findings, no substantial question of law arises. Second Appeal is accordingly dismissed. No order as to costs. (A.S.OKA, J.)