1 SA 459.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 459 OF 2010 Jijaba Rakhamaji Wagaskar .... APPELLANT VERSUS Kashinath Rangnath Wagaskar & another .... RESPONDENTS Mr. A.K.Gawali, Advocate for the appellant. Mr. Sandeep S.Deshmukh, Advocate for Resp.No. 2. CORAM : S.V. GANGAPURWALA, J. DATE : 07/03/2011 ORAL ORDER : 1. Heard the learned counsel for respective parties. 2. The appellant challenges the Judgment and decree passed by the lower appellate Court confirming the Judgment and decree passed by the trial Court dismissing the Suit of the plaintiff for specific performance of contract. 3. Mr. A.K.Gawali, learned counsel for the appellant strenuously 2 SA 459.2010 contended that the declaration regarding civil death of Kashinath was given in the year 2004 and the Suit was filed by the present appellant in the year 1994. As such it was erroneous on the part of the Court below to conclude that the Suit of the plaintiff was barred by limitation. As Kashinath was absconding and there was no denial on the part of Kashinath to perform his part of contract, time did not start running as against the plaintiff for filing Suit for specific performance of contract. The learned counsel further contended that the Courts below have perversely appreciated the evidence regarding the payment of consideration amount to the creditors of Rangnath. Though Rangnath died within eight ( 8 ) days of the execution of agreement, and though the agreement of sale does not recite that the remaining consideration shall be paid by the plaintiff to the creditors, still as Rangnath had thereafter instructed the plaintiff, the plaintiff subsequently paid the part of remaining consideration amount to the creditors. This aspect has not been properly considered and construed by the Courts below, thereby arriving at erroneous conclusion. According to the learned counsel, as the Courts have erred by arriving at an erroneous conclusion on the issue of limitation and readiness and willingness, this Court in Second Appeal can re-appreciate the said evidence. 4. Per contra, Mr. Sandeep S. Deshmukh, the learned counsel for respondent no. 2 submits that the Courts have rightly considered the 3 SA 459.2010 anomaly between the pleadings, the recitals in the agreement of sale and the deposition of the witnesses and have arrived at concurrent finding regarding the agreement of sale and the non payment of consideration amount. The evidence on record shows that the plaintiff was not ready and willing to perform his part of contract even if it is assumed that Rangnath had executed agreement of sale. The learned counsel further contends that the moment the Suit was filed in the year 1983 by one of the heirs of Rangnath, the same was denial on the part of one of the co-promiser and the time at least started running from the said date and as such the Suit was barred by limitation. 5. With the assistance of the learned counsel for the respective parties, I have gone through the Judgments. 6. The arguments of Mr. Gawali, the learned counsel for the appellant that as Kashinath had never denied performance of his promise and the declaration regarding his civil death for the first time was made in the year 2004, as such the limitation did not start running, though at the out set would appear to be attractive, still the same may not be in consonance with the legal provisions. The sale deed was to be executed within the period of one ( 1 ) year of the execution of agreement or after obtaining the permission. Rangnath died within eight ( 8 ) days of the 4 SA 459.2010 execution of agreement. One of the legal heirs who succeeded, filed Suit in the year 1983 claiming possession thereby denying the right of the plaintiff to get the sale deed executed. On the death of Rangnath, Kashinath and Sojabai would be two ( 2 ) legal heirs. When one of the legal heir had denied to execute the sale deed in the year 1983 itself, the time started running from the said date. More over, even if the arguments of Mr. Gawali are accepted that Kashinath had not denied and there was no declaration of his civil death, still the plaintiff had not claimed the relief of partition and for execution of sale deed to the extent of share of Kashinath as Kashinath and Sojabai had undivided share in the property. 7. Be that as it may, the Courts have also found that the plaintiff was not ready and willing to perform his part of contract in view of the variance between the deposition, recitals of the agreement and the pleadings. It is the specific case of plaintiff that remaining part of consideration was paid to the creditors as per the instructions of Rangnath. Rangnath died within eight ( 8 ) days of execution of agreement and the amount was allegedly paid to the creditors after about six ( 6 ) months to one ( 1 ) year. The Courts have taken into consideration this aspect and have arrived at plausible conclusion. 8. As the conclusion drawn by the Courts below is plausible one, 5 SA 459.2010 the Second Appeal can not be entertained on the ground that some other conclusion may also be possible. 9. In that light of the matter, as the Second Appeal does not involve any substantial question of law, is dismissed however with no order as to costs. 10. In view of dismissal of Second Appeal, the Civil Application does not survive and is also dismissed. [S.V. GANGAPURWALA, J.] knp/SA 459.2010