1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR SECOND APPEAL NO.203/2010 Ramnath Rambhausa Gujar & ors ..vs.. Ziyaullakha Fakrullakha & ors =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Shri A.S.Kilor, advocate for the appellant Shri A.V. Bhide, advocate for the respondent no.1 C ORAM : SMT. VASANTI A NAIK,J. DATED : 16th June, 2010. Heard counsel for the parties. The appellants are the original plaintiffs. A suit was filed by the plaintiffs for a declaration that the transaction entered between the father of the plaintiffs and the defendants was a loan transaction. It was the case of the plaintiffs that the father of the plaintiffs had sought a loan of Rs.500/- and Rs.200/- from the defendant's father on 20.8.1970. The suit field was delivered to the defendants' father for cultivation in lieu of the interest on the amount of Rs.500/- and Rs.200/-. It was pleaded by the plaintiffs that the defendants' father promised to re-convey the suit property to the plaintiffs' father on repayment of the amount. It was then pleaded that the cause of action to file the suit arose in the month of July 1984. The suit was 2 filed in August 2000. Defendants denied the claim of the plaintiffs. It was denied by the defendants that the father of the plaintiffs was addicted to vices and therefore he had mortgaged the suit property in favour of the defendants' father on obtaining the hand loan of Rs.500/- and Rs.200/-. It was pleaded by the defendants that an agreement of sale was executed by the plaintiffs' father in favour of defendants' father on 24.8.1970. It was then pleaded in the written statement that the plaintiffs' father had previously filed a suit for the same reliefs in the court of Civil Judge, Junior Division, Malkapur bearing Civil Suit No.18/1978, but the plaint was rejected by the trial court for non payment of court fees. It was pleaded by the defendants that the defendants were entitled to protect their possession in view of the provisions of section 53- A of the Transfer of Property Act as they were ready and willing to perform their part of the contract by paying the balance consideration. It was lastly pleaded by the defendants that the suit filed by the plaintiffs was barred by limitation as the previous suit was filed by plaintiffs' father in the year 1978, the same was dismissed in 1984 and it was pleaded by plaintiffs' father in that suit that the possession of the defendants over the suit property was illegal since the year 1970. The trial court on an appreciation of the evidence on 3 record held that the plaintiffs proved that they were the owners of the suit property. The trial court held that the suit for relief of declaration was barred by limitation, but the suit for possession was not barred by limitation. The trial court then held that the transaction between the plaintiffs' father and defendants' father was not a loan transaction or a mortgage. The court held that the defendants were in possession of the suit land in pursuance of the agreement of sale dated 30.8.1970 and the plaintiffs were entitled to secure the possession from the defendants. The suit for possession was therefore, decreed by the trial court. The first appellate court on re-appreciation of the evidence on record held that the plaintiffs' suit was liable to be dismissed as the same was clearly barred by limitation. It is observed by the first appellate court that the plaintiffs had pleaded in paragraph 7 of the plaint that the cause of action accrued to the plaintiffs in the month of July 1984 and in such circumstances, it was necessary for the plaintiffs to institute the suit within a period of 12 years form 1984, but the same was instituted by the plaintiffs in the month of August 2000 and the same was barred by law of limitation. According to the first appellate court the trial court failed to consider this aspect of the matter. The first appellate court confirmed the finding of the trial court that the transaction dated 30.8.1970 was 4 not in the nature of a mortgage as pleaded by the plaintiffs. Certain other issues were also answered by the first appellate court while deciding the first appeal and allowing the appeal of the defendants. On hearing the learned counsel for the parties and on appreciation of the pleadings and the evidence on record, it is clear that the suit filed by the plaintiffs was barred by limitation. The possession of the property was admittedly handed over by the plaintiffs' father to the defendants' father in 1970. The plaintiffs' father had instituted a suit against the defendants' father in the year 1978 and the said suit came to be dismissed for non payment of court fees in the year 1984. It appears from the record that in that suit it was the case of the plaintiffs' father that the possession of the defendants' father over the suit property was illegal since the year 1970. Hence actually the period of limitation would start running since the year 1970 only and the plaintiffs ought to have filed the suit within a period of 12 years from then. Even otherwise, it is the plaintiffs' case that the cause of action arose in the year 1984 and since the suit is not instituted by the plaintiffs within a period of 12 years, from August 1984, the first appellate court by considering the relevant provisions of the Limitation act and the law laid down by the courts on the same, rightly held that the suit filed by the plaintiffs was barred by limitation. 5 Since no substantial question of law arises for consideration in this second appeal, the same is dismissed with no order as to costs. JUDGE SMP