1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 41 OF 2006 Bhimrao s/o Venkatrao Kendre (deceased through LRs) Appellant Versus Deochand s/o Uban Gavali (deceased through LRs) Respondents Shri A.N. Gaddime, Advocate holding for Shri V.D. Gunale, Advocate for the appellant. CORAM: R.M.BORDE, J. DATE : 13th August, 2009. PER COURT : 1 This is an appeal by original plaintiff raising exception to the judgment delivered by the first appellate court in Regular Civil Appeal no. 47/2001 whereby the appeal presented by the original defendant came to be allowed and the judgment and decree passed by the trial court came to be set aside. 2 Appellant / original plaintiff instituted Regular Civil Suit no. 68/1986 claiming decree in respect of specific performance of agreement 2 executed by father of the defendant on 9-4-1976. Father of the defendant by virtue of agreement executed in 1976 agreed to alienate land survey no. 40/1/1 admeasuring 5 H and 83 R for consideration of Rs.3,000/-. Earnest amount of Rs.1,400/- was already received by the father of the defendant and it is further contended that an amount of Rs.600/- was to be paid at the time of execution of agreement. Balance amount of Rs.1,000/- was to be paid at the time of registration of document. Defendant was required to secure non-agriculture user permission from the revenue authority and thereafter possession was required to be handed over and the sale-deed was to be executed. It is further contended by the plaintiff that on the same day there was another agreement whereby father of the defendant handed over possession to the plaintiff. It is contended by the plaintiff that father of the defendant did not present any application for securing non-agriculture permission. He passed away in the year 1978. After his demise, the property was confiscated by the Municipal Council and the same was released in the year 1986. After release of the property in favour of defendant, plaintiff issued notice calling upon the defendant to perform his part of the contract. However, inspite of issuance of notice, defendant failed to honour the agreement. As such, plaintiff was constrained to 3 institute suit in the year 1986 against the defendant. Plaintiff claims that he was in possession of the property which was lost by him when the Municipal Council confiscated the same. However, possession was restored to defendant in the year 1986. 3 Defendant appeared and controverted the adverse contentions raised by the plaintiff. Defendant denied execution of the agreement and has also contended that even if assuming that such an agreement is executed, the claim is hopelessly barred by limitation. Plaintiff has also not exhibited his readiness and willingness to perform his part of the contract. Defendant as such prayed for dismissal of the suit. 4 Trial court after considering the evidence lead by the parties held that plaintiff has established his case and as such decreed the suit by judgment and decree dt. 10-11-1992. Appeal presented by the defendant being Regular Civil Appela no. 47/2001 came to be heard and disposed of by the Additional District Judge, Udgir who was pleased to allow the same by way of judgment and decree dt. 8-8-2005. 5 I have perused the judgments recorded by both the courts below. 4 The first appellate court has recorded finding that claim raised by the plaintiff is beyond prescribed period of limitation. First appellate court has also held that the suit is bad on account of non-joinder of necessary party so also the plaintiff has failed to establish his readiness and willingness to perform his part of the contract. From perusal of the judgment, it transpires that contentions raised by the plaintiff which are based on agreement dt. 9-6-1976 and an unregistered deed executed on the same day in respect of delivery of possession are self-contradictory. For the purpose of establishing that the suit presented by him is within limitation, plaintiff contends that sale-deed was required to be executed by the father of the defendant only after securing non-agriculture user permission. Recitals contained in the agreement show that defendant's father was to apply for non-agriculture permission and only after securing such permission, plaintiff was to be put in possession of the property however, placing reliance on unregistered agreement, plaintiff contends that he was put in possession over the property inspite of the contrary recitals contained in the registered agreement to sell. If this contention of the plaintiff is to be accepted that he was put in possession of the property, cause of action for the plaintiff to present the suit arose after his alleged dispossession by the Municipal Council in the year 1977. However, 5 plaintiff did not take any steps from 1977 to 1988. Apart from this, there is no material placed on record to reach conclusion that plaintiff has at any time after 1976 till 1988 exhibited his readiness and willingness to perform his part of the contract. Appellate court considering all the relevant circumstances concluded that the suit presented by the plaintiff is beyond prescribed period of limitation. Plaintiff has also failed to establish his readiness and willingness to perform his part of the contract. Findings reached by the appellate court appear to be reasonable and based on proper appreciation of evidence placed on record. No substantial question of law arises for consideration in the appeal. Appeal therefore stands dismissed summarily. (R.M.BORDE) JUDGE ******* adb/sa41.06.odt