1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 658 OF 2010 Ramchandra Shankar Bagal & Oths. .... APPELLANTS V E R S U S Shankar Dhondiji Bagal & Oths. .... RESPONDENTS Mr. M.P.K, Advocate for appellants. Mr. B.A.Shinde, Advocate for respondent no. 1 Mr. P.R.Katneshwarkar, Advocate for respondent no. 2. CORAM : S.V. GANGAPURWALA, J. DATE : 22/11/2010 ORAL ORDER : 1. This is plaintiff’s Second Appeal. 2. The plaintiff had filed Suit bearing Regular Civil Suit No. 65 of 1995 for partition of his share and for separate possession. The Trial Court decreed the Suit. Defendant no. 2 preferred an Appeal challenging the said Judgment and decree on the ground that defendant no. 2 is bonafide purchaser of the suit property for valuable consideration of the suit property from defendant no. 1. Defendant no. 1 had sold the suit property for legal necessity. The lower appellate Court vide its Judgment and decree dated 3/9/2010 allowed the Appeal and dismissed the Suit of the plaintiff on the ground of limitation, so also that the plaintiffs could not prove the sale deed executed by defendant no. 1 in favour of 2 defendant no. 2, is not binding on them. The plaintiff has assailed the said Judgment and decree in the present Appeal. 3. I have heard the learned counsel for the respective parties. 4. Mr. Kale, the learned counsel for the appellant/original plaintiff contends that the Trial Court had not framed any issue of limitation and the Appellate Court for the first time on the ground of limitation, has dismissed the Suit. The Trial Court had even observed that the defendant could not prove the existence of legal necessity for the defendant no. 1 to sale the suit property. 5. Per contra, Mr. Katneshwarkar, the learned counsel for respondent no. 2 submitted that as per Section 3 of the Limitation Act, 1963 it is the duty of the Court to consider the factum of limitation. The lower appellate Court on the available pleadings and the evidence on record, has correctly come to the conclusion. He further submits that defendant no. 1 did not step in to the witness box to support the case of the plaintiff, which proves the legal necessity. 6. In the facts and circumstances of the case, the following substantial question of law arises : (I) Whether the lower appellate Court for the first time on the ground of limitation could have dismissed the Suit ? (II) Whether it was not necessary for the lower appellate Court to consider the point of legal necessity ? 7. Admit. 8. At this stage, Mr. Kale, the learned counsel for the appellant and Mr. Katneshwarkar, the learned counsel for respondent no. 2 agree that the present Second Appeal be decided at the stage of admission itself as if the Court feels the 3 matter would be remanded, then there would be no point in keeping the matter pending. In light of the same, the Second Appeal is taken for final hearing. The learned counsel agree that the record is not necessary. 9. Defendant No. 1 had sold the suit property to defendant no. 2 vide the registered sale deed dated 29/6/1984. On the said date, plaintiff nos. 1 to 3 were minors. It is not disputed that the property was an ancestral property and the plaintiffs had share in the said property. The bone of contention was whether the sale deed executed by the defendant no. 1 in favour of defendant no. 2 was for legal necessity and whether the Suit was filed within the prescribed period of limitation. From the perusal of the Judgment of the Trial Court, it is manifest that the Trial Court has not framed any issue about limitation and had decreed the Suit on the ground that the legal necessity was not proved. In Appeal, the appellate Court for the first time framed point for determination regarding limitation. However, it did not consider the factum of legal necessity. 10. The question of limitation is a mixed question of law and facts, wherein an opportunity is required to be given to the party to adduce evidence. In absence of specific issue in that regard, the parties would not be aware about the evidence to be led therein. Though as per Section 3 of the Indian Limitation Act,it is the duty of the Court to consider the question of limitation, still the same has to be considered after putting the party at notice. The parties can not be taken by surprise. So also, to prove the issue of legal necessity, the burden is upon the purchaser to prove the same. The Trial Court on the ground that defendant no. 1 has not stepped into witness box, has held otherwise. Taking into consideration the aforesaid aspect of the matter, it would be appropriate to relegate the parties to the Trial Court for decision afresh after considering the issue of limitation and of legal necessity. 11. The impugned Judgments and decree passed by the Courts below are set aside. The Trial Court shall decide Regular Civil Suit No. 65 of 1995 afresh after framing the issue of limitation and giving the parties necessary opportunity 4 of adducing evidence afresh. The parties agree to appear before the Trial Court on 13/12/2010. The Trial Court shall frame the necessary issue of limitation, thereafter give opportunity to the respective parties to adduce the evidence afresh and shall decide the Suit within the period of six months thereafter. 12. In the result, the present Appeal is allowed, however, with no order as to costs. [ S.V. GANGAPURWALA ] JUDGE knp/SA 658.2010