1 S.A. 80 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 80 OF 2011 with CIVIL APPLICATION NO. 2465 OF 2011 Shaikh Ibrahim Balambhai deceased through his L.Rs & others Appellants V E R S U S Begubhai Chandbhai Shaikh Deceased through his Lrs. & others Respondents Mr. Z.M. Pathan, Advocate for appellants CORAM : S.V. GANGAPURWALA, J. DATED : 7th April, 2011 PER COURT : 1. This is plaintiff’s Second Appeal. The plaintiff had filed a suit for enforcing the right of pre-emption. The suit property was sold by the defendant No. 1 in favour of defendant Nos. 2 & 3 in the year 1982 for a consideration of Rs. 20,000/- (Rs. Twenty thousand). The plaintiff instituted a suit for enforcing his alleged right of pre-emption in respect of suit property against defendant No. 1, in the year 2000, offering consideration of Rs. 20,000/- (Rs. Twenty thousand). The trial Court dismissed the suit. The appellant preferred an appeal, appellate court also dismissed the appeal, confirming the Judgment 2 S.A. 80 of 2011 and Decree passed by the trial Court. The plaintiff has assailed the said Judgment in the present Second Appeal. 2. Shri Z.M. Pathan, learned counsel for the appellant strenuously contended that the Courts below have totally gone on a wrong premise. They have evaluated the case, as if plaintiff was claiming a right of pre-emption being a neighbour, but the plaintiff claimed his right of pre-emption under the personal law. The learned counsel further contended that the cause of action for the plaintiff to sue, had arising after decree for partition was passed in Regular Civil Suit No. 69 of 1995. The said suit was decreed in the year 2000 and immediately the demand notice was issued for exercising the right of preemption. No reply was given by the defendants, and thereafter, the suit was filed. As such, it cannot be said that the suit was barred by limitation. 3. The learned Counsel further contended that by no stretch of imagination, issue of limitation would arise. The learned counsel further contended that issue No. 1 and 5 as framed by the trial court go to the root of the matter, but they were struck off. In the absence of said issue Court could not have dealt with the matter. 3 S.A. 80 of 2011 4. With the assistance of learned Counsel, I have gone through the judgment. The suit basically was filed for exercising the right of preemption. The plaintiff himself had come with the case that defendant No. 1, taking benefit of the additional entry, sold the property to defendant Nos. 2 & 3 under registered sale-deed dated 24th February, 1982. As such, when the plaintiff came with positive assertion that the defendant No. 1 sold the property to defendant Nos. 2 & 3, then the issue in that regard was redundant. 5. The right of preemption has to be exercised within one year from the possession being taken over by the purchaser, in view of Article 97 of the Limitation Act. The defendant Nos. 2 & 3 were in possession of the properties i.e. 41 R since date of purchase. Two suits were filed after 1982 by the plaintiff. It cannot be said that the act of sale was not within the knowledge of the plaintiffs nor the pleadings depict the same. The decree in Regular Civil Suit No. 69 of 1995 cannot be the basis of cause of action. The cause of action accrued to the plaintiff to exercise the right of pre-emption, when defendant No. 1 sold the property and put him in possession of the suit property. The Courts below have properly considered question of limitation and have held that the suit is barred by limitation. 4 S.A. 80 of 2011 6. In the light of the same, Second Appeal, being sans substantial questions of law, is dismissed. However, there shall be no order as to costs. In view of the disposal of the Second Appeal, Civil Application No. 2465 of 2011, does not survive and the same is also disposed of accordingly. ( S.V. GANGAPURWALA, J ) SDM*80.11SA/070411