1 (SA 658, 659 702 of 2010 with CAS 1784 of 2010 in SA702 of 2010) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 658 OF 2010 Vishu Shankar Mahale ...Appellant vs. Rajaram Shankar Mahale and Ors. ...Respondents WITH SECOND APPEAL NO. 659 OF 2010 WITH SECOND APPEAL NO. 702 OF 2010 WITH CIVIL APPLICATION NO. 1784 OF 2010 IN SECOND APPEAL NO. 702 OF 2010 Vishnu Shankar Mahale ...Appellant vs. Deoram Shankar Mahale & Ors. ...Respondents ----- Mr.Kishor Patil i/b. Mr. P.N.Joshi for Appellant ----- CORAM: V.M. KANADE J. DATED: 18TH JANUARY, 2011 P.C. 1. The Appellant is the original Plaintiff, who filed two suits for specific performance of an agreement dated 7th June, 1965. As per the said agreement, the 2 (SA 658, 659 702 of 2010 with CAS 1784 of 2010 in SA702 of 2010) Defendant was to execute the sale deed in favour of the Plaintiff after obtaining the permission from the Collector seeking approval for transferring the said land. According to the Plaintiff, he issued notice to the Defendant on 27th February, 1994 and, thereafter, filed the suit within a period of three years from the date of the said notice. 2. Both the Courts below, the Trial Court as well as the District Court in Appeal have held that the suit is hopelessly time barred by Law of Limitation since it is filed 29 years after the sale of agreement was executed on 7th June, 1965. 3. The learned counsel for the Respondent invited my attention to the finding recorded by the Trial Court and the Lower Appellate Court on this point. It is submitted that under Article 54 of the Limitation Act, the suit for 3 (SA 658, 659 702 of 2010 with CAS 1784 of 2010 in SA702 of 2010) specific performance has to be filed within three years if the date of performance is fixed and if no such date is fixed within three years from the date of the notice issued by the Plaintiff, asking the Defendant to perform his part of the contract. 4. It is submitted that since no date is fixed, the second part of Article 54 would apply and, therefore, the suit was filed within limitation since the notice was issued on 27th February, 1994. 5. In my view, this submissions made by the learned counsel for the Appellant cannot be accepted. A finding on the question of limitation is a mixed question of facts and law and on the factual aspect, both the Court below have given a concurrent finding that initially notice was given by the Plaintiff some time in the year 1971-1972 and, therefore the period of 4 (SA 658, 659 702 of 2010 with CAS 1784 of 2010 in SA702 of 2010) limitation to start after that date. It is not possible to interfere with the concurrent finding and facts recorded by the both the Lower Courts below. Hence on this ground along, the suit itself was not maintainable. Hence it is not necessary to go into the other aspects of the case. Hence Second Appeal is dismissed and disposed of. Civil Application does not survive and is also disposed of. 6. In this case, the first suit was filed by the Plaintiff for specific performance. The second suit was filed for permanent injunction, restraining the Defendant not to obstruct the possession and third suit was filed by the Respondent – Defendant herein seeking declaration and possession. It is submitted that warrant of possession was issued in respect of the suit filed by the Respondent. He, therefore, seeks four weeks’ stay. Warrant of possession is stayed for a period of four 5 (SA 658, 659 702 of 2010 with CAS 1784 of 2010 in SA702 of 2010) weeks from today. In view of the order passed in Second Appeal No. 658 of 2010 , the other two Second Appeals do not survive and are, accordingly, disposed of. (V.M. KANADE J.)