1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL (STAMP) NO.26567 OF 2003 Shankar Yelappa Mendke Kaikadi ..Appellant Versus Fiyazoddin Ramzan Saheb died through L.Rs. ..Respondents ... Advocates appearing for : Appellant : Shri Vivek Bhavthankar, Respondents 2(i), 2/2, 2/4, 2/5 : Shri M.V.Chate, Respondent 1/A : Shri M.P.Tripathi - Absent. ... CORAM : R.M.BORDE, J. Dated : 21.7.2009 PER COURT :- 1. This is an appeal filed by the original defendant No.1 challenging the concurrent judgments and decrees of Courts below. 2. Original plaintiff had instituted Regular Civil Suit No.75 of 1973 claiming specific performance of contract, executed by defendant No.1 on 6.5.1965 as well as for decree for perpetual injunction, thereby restraining defendants from causing interference and obstruction into the peaceful possession of plaintiff over the suit plots. 3. According to plaintiff, defendant No.1 was the original owner of the property. He entered into an agreement with the plaintiff for sale of four 2 plots for consideration of Rs.150/- each. According to plaintiff, he had paid the amount of Rs.400/- on 6.5.1965 and defendant No.1 executed receipt and acknowledgment therefor. Plaintiff has stated to have again paid the part of consideration amount in favour of defendant No.1 on subsequent dates. Sale deed was to be executed on or before 30.4.1968. According to plaintiff, defendant No.1 failed to execute the sale deed and as such, he was issued a notice through Advocate on 25.5.1973. However, the defendant No.1 refused to perform his part of the contract and as such the plaintiff was constrained to file a suit. In the meantime, it is contended that, defendant No.1 alienated the suit plots in favour of defendants 2 and 3. Defendants 2 and 3, on the basis of registered sale deeds, started causing interference in possession of the plaintiff over the suit plots and therefore, the plaintiff had approached the Court seeking relief of perpetual injunction as well as a decree for specific performance of contract. 4. Defendants appeared and controverted the contentions raised by the plaintiff. According to defendant No.1, the suit presented by the plaintiff is beyond the period of limitation, since as per the terms of agreement, the sale deed was to be executed on/or before 30.4.1968. Further according to defendants, the plaintiff had issued a notice, calling upon defendants to execute the sale deed in the year 1973 and therefore, obviously, the claim raised by the plaintiff is beyond prescribed period of limitation. So far as possession of the plaintiff over the suit plots is concerned, same has not been denied by the defendants. 5. The learned trial Judge, after considering the evidence of respective 3 parties, reached a conclusion that the plaintiff has failed to make out a case for grant of decree for specific performance of the contract and rejected the claim of plaintiff in that behalf. The learned trial Judge, however, restrained defendants from causing any interference in the peaceful possession of the plaintiff over the suit plots until they secure possession by observing the procedure prescribed by law. 6. Judgment and decree passed by the trial Court was subjected to challenge at the instance of the plaintiff as well as defendants by filing separate appeals. The first appellate Court was pleased to dismiss appeals of both the parties. Original defendant No.1, aggrieved thereby, has preferred the present second appeal. 7. It is contended by the learned counsel for defendant No.1 / appellant that when the trial Court as well as first appellate Court have recorded a finding that the suit of the plaintiff itself is barred by limitation, it was not open for the Courts below to consider the request for grant of decree of injunction in favour of the plaintiff. It is required to be noted that so far as the claim raised by the plaintiff for grant of decree for specific performance of contract is concerned, the Courts below were justified in holding the claim raised by the plaintiff to be beyond limitation, as the specific performance was required to be claimed on the basis of terms contained in the document, prescribing time as the essence of contract. The sale deed, as per the agreed terms, was required to be executed before 30.4.1968. Plaintiff approached the Court in 1973 claiming relief of specific performance of contract and the said prayer has been rightly rejected by the Courts below holding that the said relief is beyond the period of limitation. 4 So far as prohibitory decree issued by the courts below, it is not controverted that the plaintiff is in possession of the disputed plots and the defendants are required to adopt appropriate measures for securing the possession. Defendants cannot be permitted to take law in their own hands and assert possession. The cause of action for claiming the prohibitory relief is different from the cause for grant of specific performance of contract. The Courts below are justified in considering the request made by the plaintiff for issuance of the prohibitory decree against defendants and the Courts below have not committed any error in that behalf. 8. No substantial question of law arises for consideration in the present appeal. The Second Appeal, therefore, stands dismissed. No order as to costs. (R.M.BORDE, J.) ... akl