1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.43 OF 1993 1 Shankarrao s/o Laxmanrao Dharkar, died, through his L.Rs.: 1A Vishnu s/o Shankarrao Dharkar, age: 42 years, Occ: Business, R/o Cantonment, Aurangabad. 1B Prabhu s/o Shankarrao Dharkar, age: 35 years, Occ: and R/o as above. 1C Rameshwar s/o Shankarrao Dharkar, age: 33 years, Occ: and R/o as above. 1D Tulsidas s/o Shankarrao Dharkar, age: 30 years, Occ: Business and R/o as above. 1E Kamalabai w/o Chandrakant Salunke, age: 45 years, Occ: Household, R/o Bhaneshivra, Tq.Newasa, District Ahmednagar. 1F Shantabai w/o Shankarrao Dharkar, age: 65 years, Occ: Household R/o Cantonment, Aurangabad. 2 Jagannath s/o Laxmanrao Dharkar, deceased through L.R.: Rukhmanibai w/o Jagannath Dharkar, age: major, Occ: Household, R/o Nehru Chowk, Cantonment, Aurangabad. Appellants Versus 2 Kantilal s/o Dagduram Muthiyan, age: major, Occ: Business, R/o Metro Cloth Store, Tilak Road, Aurangabad. Respondent Mr.Manish Navandar, advocate holding for Mr.K.G.Navandar, Senior Counsel for appellants. Mr.S.S.Bora, advocate for Respondent CORAM: R.M.BORDE, J. DATE : 21st August, 2009. ORAL JUDGMENT: 1 This is an appeal by original plaintiffs raising exception to the concurrent judgments recorded by the Courts below. 2 Plaintiffs instituted suit bearing Regular Civil Suit No.377 of 1985 claiming decree of specific performance of contract in respect of agricultural land bearing G.No.53 admeasuring 23 acres 22 gunthas, situate at Maliwada, Tq. and District Aurangabad, to the extent of 1/3 rd share of the defendant, which comes to 7 acres 34 gunthas. Plaintiffs also seek relief in respect of possession of the land as well as for grant of perpetual injunction restraining defendant from interfering in peaceful possession of plaintiffs. According to plaintiffs, defendant Kantilal and one Harakchand and Amritlal have 1/3 rd share each in land G.No.53. Defendant executed an agreement to sale in favour of plaintiffs on 15.03.1975 on accepting earnest amount of Rs.1000/-. Defendant agreed to alienate his 1/3 rd share in favour of plaintiffs. It was also agreed between the parties that defendant would secure permission for execution of the sale deed and thereafter transaction would be 3 completed and instrument of sale would be registered. There were dues payable to the bank, which plaintiffs had deposited to the extent of Rs. 4236.23. Plaintiffs also claim that considering the amount advanced in cash to the defendant as well as amount deposited with the bank towards loan repayable by him, plaintiffs have remitted excess amount of Rs.330.15. Plaintiffs on several occasions, requested defendant to execute the sale deed and put them in actual possession of the land, however, defendant did not abide by the request made by the plaintiffs. Plaintiffs, as such, were constrained to issue notice calling upon the defendant to perform his part of contract. The plaintiffs waited till 24.03.1985 and presented the suit seeking relief, as stated above. 3 Defendant filed his written statement at Exhibit-27 and controverted the contentions raised by plaintiffs. The execution of agreement on 15.03.1975 has been admitted by the defendant, so also advancement of earnest amount of Rs.1000/- as well as amount of Rs. 4236.23 on 12.06.1975 towards repayment of loan payable to the Land Development Bank is also admitted by the defendant. Defendant contends that in all probabilities, only plausible conclusion, that can be derived from the conduct of the defendant in not securing the sale deed for such a long time, is that they have abandoned the contract. It is the contention of defendant that plaintiffs were in fact not interested in completing the sale transaction. It is further contended that after the agreement was reduced into writing, Shri N.K.Kakade, advocate was entrusted with the work of securing necessary permission from the appropriate authority in respect of alienation of the property. However, after due inquiry, it was found that no permission for execution of the 4 registered sale deed is necessary. As such, defendant asked the plaintiffs to get the sale deed executed immediately, however, plaintiffs did not take any steps. The defendant, as such, contends that suit presented by the plaintiffs is barred by limitation and prayed for dismissal of the suit. 4 The trial Court, after considering evidence placed on record by the parties, considered the issue, as to whether suit presented by plaintiffs is so presented within prescribed period of limitation and held that suit is barred by time. The trial Court observed that in view of Article 54 of the Limitation Act, suit ought to have been presented within three years from the date of accrual of cause of action. It was found by the trial Court that in spite of plaintiffs conceding before the Court that Advocate Shri Kakade having informed that no permission is required for executing the document of sale, still plaintiffs failed to take necessary steps for securing execution of document of sale. It was noticed by plaintiffs that permission is not necessary to be secured for execution of the sale deed, in the year 1977 itself, however, they failed to take steps for about eight years thereafter and did not even issue notice calling upon the defendant to execute the sale deed. Plaintiffs proceeded to issue notice calling upon the defendant to execute sale deed only in the year 1985 and thereafter presented the suit. Considering all these aspects, trial Court held that suit presented by plaintiffs is barred by limitation. The judgment and decree passed by the trial Court has been confirmed in Regular Civil Appeal No.53 of 1988, decided by IV Additional District Judge, Aurangabad on 10 th August, 1992. 5 At the stage of admission, this Court found that Grounds 5 No.III, IV, V, VI, XV, XVI, and XVIII involve substantial questions of law. However, learned Counsel appearing for appellants has restricted his argument and urged only the question as regards finding recorded by the trial Court in respect of limitation. It is urged by the Counsel for appellants that the Courts below have erred in holding that the suit presented by plaintiffs is barred by limitation and according to the Counsel, the findings recorded by the Courts below, in that regard, are not in consonance with the provisions of Article 54 of the Limitation Act. 6 I have perused the judgments delivered by both the Courts below. That, so far as finding recorded by both the Courts below as regards limitation in presenting suit is concerned, I am of the opinion that the Courts below have adopted correct approach and recorded the finding, which cannot be faulted on any grounds. It is to be noted that agreement of sale has been executed on 15.03.1975. It is admitted by the plaintiffs also that as per the terms contained in the agreement, sale deed was to be got executed immediately after securing necessary permission from the appropriate authority. In order to secure permission, Advocate Shri Kakade was entrusted with the job of completing the formalities on behalf of the defendant. It is also an admitted fact that Advocate Shri Kakade informed the parties that it is not necessary to secure permission for executing the sale deed. Even after plaintiffs gained knowledge to the effect that for securing registration of instrument of sale, permission is not warranted, plaintiffs waited till the year 1985 i.e. almost for about eight years. In view of provisions of Article 54 of the Limitation Act, claim ought to have been lodged within three years from the date of refusal. Plaintiffs, however, did not act after 1977 and issued 6 notice calling upon the defendant to perform his part of contract only in the year 1985. The contention raised, in these circumstances, by the defendant that plaintiffs, by their conduct, abandoned the claim, ought to be accepted. The cause of action for presenting suit arose in the year 1977 when plaintiffs were informed that it is not necessary to secure permission from any authority for registration of the sale deed. The suit ought to have been presented at least within three years from 1977, however, plaintiffs waited for eight years for calling upon the defendant to execute the sale deed. In these circumstances, the trial Court found that suit presented by the plaintiffs is beyond prescribed period of limitation. It has also been found by the trial Court that from the circumstances appearing before the Court, it cannot be held that plaintiffs are ready and willing to perform their part of contract. The trial Court was, therefore, justified in rejecting the claim raised by plaintiffs. The first appellate Court has confirmed the finding recorded by the trial Court. In my view, approach of the Courts below is proper and the finding, recorded by both the Courts below on appreciation of evidence placed on record, do not call for any interference. 7 Appeal is devoid of substance. Hence stands dismissed. In the facts and circumstances of this case, however, there shall be no order as to costs. (R.M.BORDE) JUDGE ******* adb/sa4393