Shri Nivrutti Kachshwar Nagre & Ors. v. Shri Sukdeo Sakharam Gorade & Ors.

Mr. Harshad Inamdar for the Appellants Mr. Sandip Shinde for the Respondent Nos.1A to 1G, 2 & 3 CORAM:- R M SAVANT, J DATED :- 3rd APRIL, 2012. P.C. 1 There is a concurrent finding recorded by the Courts below against the Appellants that the suit filed by them is barred by limitation. The Appellants had filed the suit in question being Regular Civil Suit No.28 of 1995 for re-conveyance of the property in respect of which a Sale Deed dated 14-6-1954 was executed by the father of the Plaintiffs Kacheshwar Nagre in favour of the Defendant No.1. It was the case of the Plaintiffs that on 14-6-1954 the Sale Deed of the suit property mentioned in paragraph 1 of the plaint was executed and registered and on the same day another document providing for re-conveyance of the Plaintiffs on the payment of Rs.1000/- by them to the Defendant No.1, came to be executed. It is required to be noted that the second document was not a registered 1\5 sa-191-12.sxw document. In view of the fact that the execution of the second document was denied by the original Defendant No.1, the said document was sent to hand writing expert to obtain opinion as regards the signature of the Defendant No.1. The hand writing expert had accordingly sent his report stating that it is not possible to express any definite opinion as regards the said signature of the Defendant No.1. The Trial Court in the said circumstance held that since the contents of the document were not proved, the said document could not be held to have been proved by the Plaintiffs by the process known to law. The Trial Court thereafter proceeded to decide the suit in question. The Trial Court held that assuming that the said document was to be taken into consideration, the Trial Court held that the said document being in the nature of a mortgage deed, the redemption thereof was to be done within a period of 30 years and since the said redemption was not within 30 years, the suit in question filed in the year 1954 i.e. after 40 years of the execution of the said document, was held to be beyond limitation. The Trial Court also recorded a finding of fact against the Plaintiffs in respect of their readiness and willingness to comply with the terms of the said re-conveyance deed dated 14-6-1954. The Trial Court therefore by Judgment and Order dated 8-11-2006 dismissed the suit filed by the Plaintiffs. 2\5 sa-191-12.sxw 2 The unsuccessful Plaintiffs filed Appeal being Civil Appeal No.8 of

2007. The Lower Appellate Court by the impugned Judgment and Order dated 19-4-2011 has dismissed the said Appeal. The Lower Appellate Court, as can be seen from its order, has proceeded on the basis that the second document dated 14-6-1954 was held to be proved and assuming it to be so held that the suit filed in the year 1954 was beyond limitation. Though reasons mentioned in the Lower Appellate Court for arriving at a conclusion that the said document would have to be held to be proved, prima facie do not appear to be sustainable. However, what is required to be noted is that the Lower Appellate Court has confirmed the finding of the Trial Court in so far as the suit being beyond limitation is concerned. The Lower Appellate court was also of the view that the said document has to be construed as a mortgage deed and assuming it to be so, the Plaintiffs had to file the suit within 30 years for the redemption of the said mortgage. In my view, the finding recorded by both the Courts below on the aspect of limitation cannot be faulted with. 3 It is sought to be contended by Shri Inamdar the Learned Counsel appearing for the Appellants/Plaintiffs that the period of limitation would start only after the Plaintiffs had given notice to the Defendant No.1 to reconvey the property and the denial of the same by the Defendant No.1. 3\5 sa-191-12.sxw The said notice being given in the year 1994, the suit as filed in the year 1995, was maintainable. In the said context, it would be gainful to refer to Section 46 of the Indian Contract Act, which states that where no time for performance is specified in the Contract the engagement must be performed within a reasonable time. In my view, assuming that the second document dated 14-6-1954 was a deed providing for re-conveyance, it is required to be noted that father of the Plaintiffs in his life time never applied for re-conveyance of the property and it is only his heirs who applied for re-conveyance after a period of 40 years. In my view, therefore there is no substance in the said contention of the Learned Counsel for the Appellant. The Learned Counsel for the Appellant relies upon the Judgment of a Learned Single Judge of this Court in Second Appeal No. 628 of 2009 in the matter of Shahabuddin Akabar Mulla Vs. Krishna Bapu Phonde. In the said case, it was held that the Agreement had become enforceable on account of the happening of a particular event. It is in the said context that the issue was adjudicated upon and the Learned Single Judge held that the starting point of limitation will be the date on which the Respondent /Plaintiff had notice that the performance of the suit agreement was refused by the Appellant. In my view, since both the Courts below in the facts and circumstances of the present case have held that the 4\5 sa-191-12.sxw suit as filed is beyond limitation, the said Judgment would have no application. 4 Having heard the Learned Counsel for the parties at some length and having perused the papers and proceedings, in my view, no substantial question of law arises for consideration of this Court. The Second Appeal is accordingly dismissed. (R M SAVANT, J) 5\5