1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.662 OF 2006 Sou.Sharadabai Jaywant Memane Age : 58 years, Occu : Agriculture ..Appellant R/o.at Jalochi, Taluka Baramati, District : Pune V/s. 1. Smt Shantabai Krishna Sonwale Age : 73 years, Occu : Agriculture R/o.at Baramati, Opp.Sham Talkies Taluka Baramati, District : Pune 2. Shri Suresh Krishna Sonawale Age : 45 years, Occu : Business R/o.at Baramati, Opp.Sham Talkies Taluka Baramati, District : Pune 3. Radhabai Krishna Mone Age : 50 years, Occu : Household C/o.Shivaji Genba More ..Respondents Plot No.461, Koyana Housing Society, Gultekadi, Pune – 411 001 4. Mangala Ashok Supekar Age : 47 years, Occu : Household R/o.at Ganesh Colony, House No.2/6/29 Near Panchayat Samiti office Aurangabad, District : Aurangabad 5. Surekha Krishna Sonawale Age : 36 years, Occu : Household R/o.at Baramati, Opp.Sham Talkies Taluka Baramati, District : Pune Mr.P.B.Shah i/b.Mr.Milind Deshmukh, advocate, for the appellant Mr.A.P.Kulkarni, advocate, for the respondent Nos.1, 2 and 5 2 Mr.A.M.Kulkarni, advocate, for the respondent Nos.3 and 4 CORAM : A.S.OKA, J. DATE : 5TH MARCH,2008 ORAL JUDGMENT . Heard the learned advocates appearing for the parties. The Second Appeal is admitted on the following substantial question of law. Whether the Appellate Court has committed an error by not framing a point for determination on the issue of limitation though the submissions were made on the said issue by the appellants ? 2. The Advocate for the respondent Nos.1, 2 and 5 and the advocate for the respondent Nos.3 and 4 waive service. Considering the controversy involved, the appeal is immediately taken up for final hearing. The respondents are the original plaintiffs. The respondents filed a suit for possession of the suit property. According to the respondents, the suit property was originally owned 3 by the deceased husband of the first respondent. According to the case made out by the respondents, the appellant took undue advantage of the fact that the first respondent was under a shock due to death of her husband and obtained possession of the suit property. 3. The appellant contested the suit by contending that the husband of the first respondent had agreed to sale the suit property to her at the price of Rs.39,000/- and appellant had paid to him a sum of Rs.5,000/- and obtained possession of the suit property. A plea was raised that the suit was barred by limitation. The Trial Court decreed the suit. The Trial Court dealt with the plea of the appellant as regards perfection of title by adverse possession. The Appellate Court has modified the decree to the extent that the respondents have been directed to pay Rs.5,000/- to the appellant. The modification made by the Appellate Court is that the appellant will be entitled to withdraw the said amount of Rs.5000/-, if she delivers possession of the suit property to the respondents. 4 4. The Appellate Court held that the appellant has failed to prove that the deceased husband of the respondent No.1 had agreed to sale the suit property to the appellant and put her in possession of the suit property by accepting a sum of Rs.5000/- as the earnest money. The Appellate Court held that the appellant has failed to establish her readiness and willingness to perform her part of the Agreement and therefore, the Appellate Court declined to grant protection to the appellant U/s.53A of the Transfer of Property Act, 1882. 5. The submission the of the learned advocate for the appellant is that before the Trial Court, an issue was framed on the basis of plea of adverse possession but the Appellate Court has not considered the said issue. He invited my attention to the paragraph five of the Judgment of the Appellate Court. A submission was specifically made before the first Appellate Court regarding bar of limitation. He submitted that the said 5 submission has not been considered by the Appellate Court. 6. The submission of the learned advocate for the respondents is that on the basis of material which is already on record it is obvious that the appellant will never be able to substantiate the plea of adverse possession and therefore, there is no question of bar of limitation. He further submitted that no interference is called for. 7. I have carefully considered the submissions. In paragraph five of the Judgment of the Appellate Court, it is observed thus :- “Being aggrieved by the impugned judgment and decree, the original defendant preferred this appeal, wherein she submitted as follows. That the trial court failed to appreciate the evidence on record. That the trial court failed to appreciate the provisions of Transfer of Property Act. That the trial court did not consider the plea of adverse possession properly. That the trial court ought to have held that the suit was barred by law of limitation. That the trial court ought to have held that the plaintiffs were not entitled for possession. Thus, she prayed that impugned judgment and decree passed by the trial court be quashed and set aside and the plaintiffs' suit for possession be dismissed with costs.” 6 8. Thus, it is apparent that a submission was made as regards bar of limitation before the Appellate Court by the appellant. Perusal of the Judgment of the Appellate Court shows that the said Court has not at all dealt with the aforesaid plea though the same was canvassed by the appellant. As the first Appellate Court, it was the duty of the said Court to consider said submission and to decide the same in accordance with law. 9. The issue of adverse possession and the issue bar of limitation is always a mixed question of law and facts. Therefore, in the Second Appeal said questions cannot be decided as this Court does not have the benefit of a finding on the said aspects recorded by the 1st Appellate Court. The 1st Appellate Court is the last fact finding Court. This is a case where the said issues were specifically agitated by the appellant before the first Appellate Court and the said Court has not considered the same. Therefore, to enable the first Appellate Court to decide the plea of bar of 7 limitation, an order of remand will have to be passed. 10. Therefore, I pass the following order. (i) The impugned Judgment and Decree dated 21st April, 2006 is quashed and set aside and Regular Civil Appeal No.167 of 1997 is restored to the file. (ii) The parties are directed to appear before the Appellate Court on 7th June, 2008 at 11.00 A.M. for fixing the schedule of hearing of the appeal. (iii) The Appellate Court shall decide the appeal as per the observations made in this Judgment as expeditiously as possible and in any event, on or before 31st October, 2008. (iv) The Appeal is partly allowed in above terms with no order as to costs. (v) The Appellate Court and parties to act upon an authenticated copy of this order. (vi) In view of this Judgment, Civil Application does not survive and same is disposed of. (A.S.OKA, J.)