Bombay High Court
Mohd.Afsarmiya Bapumiya ... vs Sharifkhan Noorkhan Musalman & 7 ... on 15 July, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Second Appeal No.262 of 2001
1. Mohd. Afsarmiya Bapumiya Deshmukh,
Aged about 50 years.
2. Mohd. Sufimiya Bapumiya Deshmukh,
Aged about 55 years.
3. Mohd. Mufijmiya Bapumiya Deshmukh,
since deceased, through his legal
representatives :
3(a) Anjum Mufizmia Bapumiza Deshmukh.
3(b) Muniz Mufizmia Bapumiza Deshmukh.
3(c) Moin Mufizmia Bapumiza Deshmukh.
3(d) Masrat Zafarullah Khan.
All 3(a) to 3(d), R/o Danish Colony,
Court Road, Amravati, Tahsil and
District Amravati.
4. Mohd. Gazimiya Bapumiya Deshmukh,
Aged about 43 years.
5. Mohd. Niksudmiya Bapumiya Deshmukh,
Aged about 38 years.
No.1, 2, 4 and 5 R/o Village Mulava,
Tq. Umarkhed, Distt. Yavatmal.
6. Smt. Kamrunisa wd/o Hamjumiya
Deshmukh, through her legal
representatives :
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6a) Mumtajmiya Humjumiya Deshmukh,
Aged 45 years, R/o Post Rani Amravati,
Tq. Babulgaon, Dist. Yavatmal (Son).
6b) Salimmiya Humjumiya Deshmukh,
Aged 43 years, R/o Post Rani Amravati,
Tq. Babulgaon, Dist. Yavatmal (Son).
6c) Farukhmiya Humjumiya Deshmukh,
Aged 41 years, R/o Post Rani Amravati,
Tq. Babulgaon, Dist. Yavatmal (Son).
6d) Iftekarmiya Humjumiya Deshmukh,
Aged 39 years, R/o Post Rani Amravati,
Tq. Babulgaon, Dist. Yavatmal (Son).
6e) Kalimmiya Humjumiya Deshmukh,
Aged 37 years, R/o Post Rani Amravati,
Tq. Babulgaon, Dist. Yavatmal (Son).
6f) Nasimbano Jamshedmiya Patel,
Aged 35 years, R/o Post Vadona,
Tq. Arvi, Dist. Yavatmal (Daughter).
7. Smt. Famidabai w/o Ganimiya Patel,
Aged about 59 years,
R/o Anvi Mirzapur, Tah. & Distt. Akola.
8. Balkisara Mubarakali Qureshi,
Aged about 42 years,
R/o Ahmednagar.
9. Raziyabi Kamarkhan Deshmukh,
Aged about 40 years,
R/o Chamori,
Tq. Daryapur, Distt. Yavatmal.
10. Alishanbi wd/o Bapumiya Deshmukh,
Aged about 85 years,
R/o Village Mulava, Tq. Umarkhed, ... Appellants/
Dist. Yavatmal. Ori. Plaintiffs on R.A.
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Versus
1. Sharif Khan Noor Khan Musalman,
Since deceased, through his legal heirs :
1-a)Ahmedabi Sharifkhan,
R/o Mulawar, Tq. Umarkhed,
District - Yavatmal ... (Wife).
1-b)Ibrahimkhan Sharifkhan,
R/o Mulawa, Tq. Umarkhed,
District - Yavatmal ... (Son).
1-c) Khatijabi Sheikh Taher,
R/o Near Kajipura Masjid,
Umarkhed, Tq. Umarkhed,
District - Yavatmal ... (Daughter).
1-d)Mannarkha Sharifkhan,
R/o Mulawa, Tq. Umarkhed,
District - Yavatmal ... (Son).
1-e)Kherunissa Muktarmiya,
Near Weekly Bazar, Noori Moula
Kalmanuri, Tq. Kalmanuri,
District - Hingoli ... (Daughter).
1-f) Mehamudkha Sharifkhan,
R/o Mulawa, Tq. Umarkhed,
District - Yavatmal ... (Son).
1-g)Tayaibkhan Sharifkhan,
R/o Mulawa, Tq. Umarkhed,
District - Yavatmal ... (Son).
1-h)Rabbanibi Sahebkhan,
R/o Rajura, Post Chincholi,
Tq. Kalmanuri, District - Hingoli ... (Daughter).
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1-i) Shammaparvin Sheikh Ibrahim,
R/o Mulhagalli Hadgaon,
Tq. Hadgaon, District - Nanded ... (Daughter).
2. Bashir Khan Noorkhan,
Since deceased, through his legal
representatives :
2-a)Rabiyabee Bashirkha (Wife),
Aged 75 years,
Occupation - Household,
R/o Mulava, Tq. Umarkhed,
Distt. Yavatmal.
2-b)Ismail Kha Bashirkha (Son),
Aged about 61 years,
Occupation - Retired,
R/o Mulava, Tq. Umarkhed,
Distt. Yavatmal.
2-c) Arefoonbee Sheikh Pasha (Daughter),
Aged about 55 years,
Occupation - Household,
R/o Station, Kandali,
Tq. Himayat Nagar,
Distt. Nanded.
2-d)Mujamil Kha Bashirkha (Son),
Aged about 50 years,
Occupation - Labourer,
R/o Mulava, Tq. Umarkhed,
Distt. Yavatmal.
2-e)Kabilkhan Bashirkhan (Son),
Aged about 47 years,
Occupation - Labourer,
R/o Mulava, Tq. Umarkhed,
Distt. Yavatmal.
2-f)Abdullahkha Bashirkha (Son),
Aged about 45 years,
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Occupation - Labourer,
R/o Taj Pura, Umarkhed,
Tah. Umrkhed,
Distt. Yavatmal.
2-g)Fatemabee Sheikh Kamarmiya (Daughter),
Aged about 40 years,
Occupation - Household,
R/o Dhanki Road,
Takiya Plot, Umarkhed,
Distt. Yavatmal.
3. Saifullah Khan Noor Khan,
Since deceased, though his
legal representatives :
3(i) Tahasilkha Saifullahkhan Pathan,
Aged about 42 years,
R/o At Post Mulava,
Tq. Umarkhed,
Distt. Yavatmal.
3(ii)Sufiyabano Raufkhan (Miyakhan),
Aged about 51 years,
At Post Mulla Galli, Hadgaon,
Tq. Hadgaon, District Nanded.
4. Alamkhan Noorkhan,
Aged about 51 years.
5. Pirkhan Noor Khan,
Aged about 42 years.
6. Ahmadkhan Noor Khan,
Aged about 42 years.
Nos.3 to 6 R/o Village Mulava,
Tq. Umarkhed, Distt. Yavatmal.
7. Afzal Bi Sk. Hanif (dead), through
his legal heirs :
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7-a)Sheikh Ibrahim Sk. Hanif (Son),
Aged 60 years, R/o Foujdar Pura,
Dhanki, Tah. Umarkhed,
Distt. Yavatmal.
7-b)Sheikh Hamid (Babu) Sk. Hanif (Son),
Aged about 58 years,
R/o Mulava, Tah. Umarkhed,
Distt. Yavatmal.
7-c)Alimoonbi Sheikh Ajij (Daughter),
Aged about 69 years,
R/o Dongarkada Fata, Sakhar
Karkhana Colony,
Tah. Kalamnuri, Distt. Hingoli.
7-d)Sheikh Isak Sheikh Hanif (Son),
Aged 58 years, R/o Talni, Tah. Hatgaon,
Distt. Nanded.
7-e)Sheikh Harun Sk. Hanif (Son),
R/o Dhanki Foujdarpura,
Tah. Umarkhed, Distt. Yavatmal.
7-f)Bayabai Sheikh Mustafa (Daughter),
Aged 45 years, R/o Talni,
Tah. Hatgaon, Distt. Nanded.
7-g)Hasinabai Sheikh Ibrahim (Daughter),
R/o Mulava, Tah. Umarkhed,
Distt. Yavatmal.
8. Rashidabi Sk. Lal - (Deceased)
By L.Rs. :-
*i) Shaikh Lal Shaikh Moinuddin,
Age 80 years, Occupation - Agriculturist,
R/o Talni, Tq. Hatgaon,
Distt. Nanded.
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(* S.A. Dismissed against Respondent
No.8-i as per the Hon'ble Court's Order
dated 5-4-2004).
ii) Shaikh Mustafa Shaikh Lal,
Aged 60 years,
Occupation - Agriculturist,
R/o Talni, Tq. Hadgaon,
Distt. Nanded.
iii) Kanijabee w/o Shadullahkhan Pathan,
Age 65 years, Occupation - Household,
R/o Near Old Bus Stand, Hadgaon,
Distt. Nanded.
iv) Tamijabee w/o Shaikh Issa,
Age 58 years, Occupation - Household,
R/o Talni, Tq. Hadgaon,
Dist. Nanded.
v) Shaikh Murtuja s/o Shaikh Lal,
Aged 50 years, Occupation - Nil,
R/o Talni, Tq. Hadgaon,
Distt. Nanded.
**vi) Smt. Julekhabee wd/o Ghasimiya
Kotwal,
Aged 45 years, R/o Ward No.2,
Mahur, Tq. Mahur,
Distt. Yavatmal.
(**S.A. Dismissed against Respondent
No.8-vi as per the Hon'ble Court's
Order dated 22-6-2007). ... Respondents/
Ori. Defendants on R.A.
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Shri P.R. Agrawal, Advocate for Appellant Nos.1 to 5 and 7.
Shri R.L. Khapre, Advocate for Respondent Nos.1(a,c,e,f to I).
Shri P.R. Agrawal, Advocate for Appellants.
Shri R.L. Khapre, Advocate for Legal Representatives of Respondent
No.2.
Coram : R.K. Deshpande, J.
Dated : 15 July, 2016
th
Oral Judgment :
1.
The Trial Court dismissed Regular Civil Suit No.11 of 1989
(old R.C.S. No.41 of 1972) for specific performance of agreement to
re-convey the suit property on 29-2-1996. Regular Civil Appeal
No.25 of 1996 has also been dismissed by the lower Appellate Court
on 17-4-2001. Hence, the present second appeal by the original
plaintiff.
2. The Courts below have dismissed the suit filed by the
plaintiff essentially on the ground that it was barred by the law of
limitation, as contained in Article 54 of the Limitation Act, 1963.
Hence, this Court admitted the matter on 17-2-2010 on the substantial
questions of law framed as under :
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"1. Whether the Courts below have misconstrued the
provisions of Article 54 of the Limitation Act in coming to the
conclusion that the suit filed by the appellant is barred by the
limitation considering the date fixed for performance in the
agreement dated 19/4/1967 (Exh.65)?
2. Whether the Courts below arrived at a perverse findings
of fact that the suit is barred by limitation without considering
the document dated 18/4/1972 (Exh.66) whereby the parties
had mutually agreed to extend the time for performance of the
agreement dated 19/4/1967?"
3. On 19-4-1967, the plaintiff sold the suit property to the
defendant No.1-Sharifkhan by executing the registered sale-deed. On
19-4-1967 itself, an agreement to re-convey the said property was
executed between the defendant No.1 and the plaintiff and it was
placed on record before the Trial Court and marked as Exhibit 65.
According to the Courts below, the plaintiff was required to get the
property re-conveyed on or before 13-4-1972 and the suit for specific
performance of the agreement of re-conveyance was filed on
18-4-1972. The Courts below have held that the suit was barred by
Article 54 of the Limitation Act.
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4. Article 54 of the Limitation Act being relevant, is reproduced
below :
Description of suit Period of Time from which period
limitation begins to run
54. For specific Three years The date fixed for the
performance of a performance, or, if no such
contract. date is fixed, when the
plaintiff has notice that
ig performance is refused.
It is not in dispute that the aforesaid clause governs the question of
limitation for filing the present suit. It prescribes the period of three
years to be commenced either from the date fixed for performance, if
it is so fixed in the agreement, or if in the absence thereof, the date on
which the plaintiff gets the notice that the performance is refused.
5. In the present case, the sale-deed was required to be
executed on or before 13-4-1972, but according to the plaintiff, it was
not executed though such specific performance was asked for and the
suit was filed on 18-4-1972. In view of this position, it cannot be said
that the present suit seeking specific performance of agreement to
re-convey the suit property was barred by the law of limitation. The
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substantial questions of law are answered by holding that both the
Courts below have committed an error in holding that the suit was
barred by limitation.
6. The Courts below have not applied their mind to the
evidence on record and the other contentions. All other issues framed
will have to be decided afresh and hence the matter will have to be
sent back to the Trial Court for decision afresh in accordance with law.
7. In the result, the second appeal is allowed. The judgment
and order dated 29-2-1996 passed by the Trial Court in Regular Civil
Suit No.11 of 1989 (Old R.C.S. No.41 of 1972), and the judgment and
order dated 17-4-2001 passed by the lower Appellate Court in Regular
Civil Appeal No.25 of 1996, holding that the suit is barred by
limitation, are hereby quashed and set aside and set aside. The matter
is remitted back to the Trial Court for decision afresh. The parties to
appear before the Trial Court on 31-8-2016. The Trial Court to decide
the matter within a period of six months from the said date, and it
shall not be necessary for the Trial Court to issue fresh notices to the
parties concerned. No order as to costs.
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8. At this stage, Shri Khapre, the learned counsel for the legal
representatives of the respondent No.1, submits that he could not find
the document at Exhibit 65 in the record of the Trial Court, which has
been received by this Court. Shri Agrawal, the learned counsel for the
appellants, has tendered the certified copies of some of the documents
at Exhibits 41, 65, 66 and 72 received by him from this Court. Hence,
these documents are taken on record and be added in the record of
the Trial Court. If the parties wanted the copies of these documents,
the office shall furnish the same.
JUDGE.
Lanjewar, PS
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CERTIFICATE
"I certify that this Judgment uploaded is a true and
correct copy of original signed Judgment."
Uploaded by : Uploaded on : 19-7-2016
P.D. Lanjewar,
PS to Hon'ble Judge
