1sa223-10.sxw 1 spb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 223 OF 2010 WITH CIVIL APPLICATION NO. 473 OF 2009 IN S.A.NO. 223 OF 2010 Ranu Mahadu Landge, since deceased by Lrs 1. Madhav Ranuji Landge & Ors. ... Appellants. V/s. Pandurang Sahadu Gunjal, since deceased by Lrs 1a Sau Shewantabai Pandurang Gunjal & Ors. ... Respondents. --- Mr. R.D. Soni i/by Ram and Co. for the Appellants. Mr. Girish Agrawal for Respondents. . --- CORAM:- G.S. GODBOLE, J. DATED :- 04TH OCTOBER, 2011. P.C. : 1 Heard Mr. R.D.Soni for the Appellants, who are heirs of original Defendant. The original Defendant -Ranu Mahadu Landge claims to have been inducted in possession of the suit land as and by way of part performance of a document stated to be an agreement for sale executed on 2.4.1971 by Plaintiff-Pandurang and his brother Murlidhar. Earlier on account of interse dispute between the parties, the Plaintiff had filed RCS 1sa223-10.sxw 2 No.336 of 1987 for injunction against the Defendant in which an interim injunction was granted but the same was reversed in Appeal from Order filed by the Defendant being Misc. Application No. 63 /1988. The Defendant had also filed RCS No. 419/1989 against the Plaintiffs, which was dismissed on 9.9.1987 and thereafter, the Plaintiffs withdrew the suit simplicitor for injunction, namely, earlier Suit RCS No. 336/1987. It is thereafter, that the Plaintiffs have filed the present suit, namely, RCS No. 26 /2000 in the Court of learned Civil Judge, Jr. Division, Sinnar for the possession on the basis of the title by contending that the document in question had been executed as and by way of security and that in fact possession was not handed over to the Defendant by way of part performance. An alternative plea was also raised that in case the Defendant is found to be possession and in case said possession was found to be on the basis of the agreement for sale allegedly executed, the Defendant was not ready and willing to perform his part of contract. The suit was contested by the Defendant and it was stated that the Defendant had been ready and willing to perform his part of the contract. However, no plea of adverse possession was raised. No counter claim was filed in a suit for specific performance was filed. The Defendant did not step into witness box. 1sa223-10.sxw 3 2 At the hearing of the Suit, the Defendant sought to produce the document on which he was relying upon and that since the original was not available, a copy was sought to be produced by way of secondary evidence. That request was rejected. The suit was tried and the defence of the Defendant being in possession as and by way of part performance, seeking protection for possession under section 53A of TP Act, 1882 was also negatived. So also defence regarding limitation was also repelled and it was held that the suit was governed by Article 65 of the Schedule of the Indian Limitation Act, 1963. Consequently, the learned C.J., J.D. Sinner passed a Decree for possession on 11.02.2003. 3 This Decree has been upheld by the learned District Judge -5, Nasik by impugned Judgment and Order dated 14.08.2008 passed in Civil Appeal No. 106/2003. The learned Judge has recorded a finding that Article 65 of the Limitation Act would govern such a suit, that the Defendant had failed to prove that had been put in possession as and by way of part performance and that since the Defendant had failed to enter the witness box, the Defendant has failed to prove handing over possession under the agreement and/or his readiness or willingness. 1sa223-10.sxw 4 4 Mr.Soni submitted that since the learned District Judge had held that the secondary evidence should have been allowed to be led, the observations of the learned District Judge that the secondary evidence could not be led on account of the lack of pleadings in the W.S. are not sustainable and hence case should be remanded for permitting production of the agreement. It was further submitted that since the original Plaintiff had filed the suit simplicitor for possession and no declaration was sought regarding termination of the agreement, such a suit was not maintainable and was liable to be dismissed. 5 I have carefully considered both the submissions. Assuming that the production of secondary evidence had been allowed that would at the highest result in getting copy of the agreement being placed on record or even if the Appellant was allowed to examine himself about the contents of the agreement, the Appellants could have deposed about the recitals therein. In the first place, there is no foundation for such a plea that it had not been allowed in the Trial Court and the Appellant having not stepped in the witness box at all, such a lacuna could not have been allowed to be filled up. Even otherwise, if one ignores the finding about the failure of the Appellant to show that he had been put in possession as and by way of part 1sa223-10.sxw 5 performance of the agreement, then for granting protection under section 53A of the TP Act, 1882 there is a further requirement of readiness and willingness and in that regard the Appellant has miserably failed to show his readiness and willingness save and except a statement in the written statement. Mr. Soni does not dispute the legal position that existence of readiness and willingness is an essential ingredient for granting protection under section 53A of the Act. In view of this, non production of the agreement or refusal by the Trial Court to permit the Appellant to lead secondary evidence does not raise any question of law. 6 In so far as the second submission regarding need to have prayer for declaration is concerned, the same need not detain the court for long. Principal plea of the Plaintiffs was to the effect that the agreement was executed as and by way of security. As an alternate plea, the Plaintiffs had pleaded that if the Defendant shows that he is in possession as and by way of part performance then the Decree for possession should be passed on the ground that he had failed to show his readiness and willingness. In a suit for possession based on title, the Plaintiff need not seek such a declaration and such a declaration is inherent. The history of litigation clearly indicates that the parties were at loggerheads at least from the year 1987 1sa223-10.sxw 6 and were aware about the disputes interse where the Appellant was also aware about the fact that the Respondent-original Plaintiff was not ready to perform his part of the alleged agreement. 7 In so far as limitation is concerned, the written statement is absolutely silent about the date from which the possession of the Appellant was allegedly became adverse to the original Plaintiff. In fact since the Appellant had raised a defence of having been put in possession as and by way of part performance, the plea of adverse possession could not have been raised and therefore, was rightly not raised. Thus the Trial Court and the Appellate Court were justified in holding that the suit is within limitation and Article 65 governs the suit. No substantial question of law arises. 8 The Second Appeal is dismissed. In view of the dismissal of the Second Appeal itself, the Civil Application No. 473 of 2009 does not survive and the same is also dismissed. [G. S. GODBOLE, J.]