1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 1553 OF 2004 Bhau S/o Vitthal Magar Through G.P.A. & L.Rs. ...Appellants VERSUS Jagannath S/o Yeshwant Ghodake and others. ...Respondents ------------------------------------------ Mr. M.A.Kulkarni,Advocate for appellant. ------------------------------------------ (CORAM : R.M.BORDE, J ) DATE : 6th October,2009 PER COURT : 1. Heard. 2. This is an appeal by original plaintiff raising exception to the concurrent judgments recorded by the Courts below. 3. It is case of the plaintiffs that, in the year 1991 father of the plaintiffs was in need of money. Therefore, he approached Yeshwanta Patil and demanded money. He agreed to give amount, but stated that he should mortgage the suit land, and till return of the amount, he would cultivate the 2 suit land. Said Yeshwant Patil insisted to execute sale deed in his favour for consideration of Rs.250/-. As the plaintiff was in need of amount, he executed sale deed, which was not real, but nominal one. The nominal sale deed was got executed on 5.2.1349 Fasli (i.e. 1940 AD.) On demise of Yeshwant Patil, his son cultivated the property. The defendant No.1, subsequently transferred the property in favour of defendant No.4 and he was put in possession thereof. According to the plaintiff, he offered to tender the amount to the defendants, however, they refused to accept the same. According to the plaintiff, the cause of action arose on 04.03.2001. The plaintiff, as such, claimed the relief in respect of cancellation of sale deed and recovery of possession. 4. The defendant Nos.2 to 4 resisted the suit by filing their written statement and denied the contention raised by the plaintiffs that the transaction in question is mortgage transaction. They contended that the transaction is in respect of sale of disputed property. The defendant No.1 has sold the suit land to defendant No.4 on 11.09.1964 for consideration of Rs.15,000/-. The defendant No.4 had partitioned the lands amongst defendant No. 2 and 3. Since 30 years, the names of defendant Nos 2 and 3 appeared in the revenue record. According to them, the sale deed was 3 executed infavour of Yeshwant Patil about 50 years back, and therefore, the sale transaction is beyond limitation. 5. On consideration of the rival pleadings the trial court framed issues, and, after considering the evidence placed on record, came to the conclusion that the plaintiff has failed to establish his case and dismissed the suit. 6. The judgment of the Trial Court was subject-matter of challenge in Regular Civil Appeal 127 of 1998, which came to be dismissed by the Additional District Judge Beed, on 22.01.2003. I perused the judgment delivered by both the Courts below. The first Appellate Court has recorded findings of fact that the plaintiff has failed to establish his case. The plaintiff did not lead evidence in respect of transaction being of charactor of mortgage. The document of sale does not spell out anything to infer that the transaction in question is anything else than evidenced in the document. The plaintiff has also not adduced the parol evidence to substantiate his contention that transaction in question is in fact a mortgage transaction. It is to be noted that transaction of sale was entered into on 5th February 1949 Fasli (i.e. 1940 AD). The plaintiff was aware of the transaction effected by the defendant No.4 infavour of the defendant No.2 and 3. It had taken place 4 about 20 to 25 years prior to the presentation of suit. In view of provisions of the Article 61(b) of the Limitation Act,limitation is prescribed as twelve years to seek recovery of possession of mortgaged property, from the date of accrual of cause of action. The plaintiffs have also claimed cancellation of sale deed. In view of the provisions of Article 59 of the limitation Act, the limitation prescribed for cancellation of the sale deed is three years. The plaintiffs have presented the suit after 25 years of execution of the sale deed. The present suit is hopelessly barred by limitation. In view of this, the findings recorded by courts below need not be interfered with. No substantial question of law arises for consideration in this appeal. Hence, the appeal stands dismissed. ( R.M.BORDE, J. ) MTK/SA.1553.04