CHAMPAVATI SHYAM NAIK Vs. UMABAI B. PARULEKAR

JUDGEMENT

(1.) HEARD Shri S. G. Dessai, learned Senior Counsel appearing for the appellant.

(2.) The above Second Appeal challenges the judgments and decrees passed by the Courts below whereby the suit for specific performance of contract filed by the appellant came to be dismissed. The learned Trial Judge by judgment and decree dated 30.01.2010 dismissed the suit filed by the appellant on the ground that the appellant was not entitled for specific performance of agreement as the property which is sought to be purchased was allotted to the deceased Mahesh by the Communidade and as such the question of agreeing to sell such property without obtaining permission of the Communidade would not arise at all. The learned Judge further found that as per the provisions of the Code of Communidade no person is entitled to enter into any transaction of sale of the land allotted to them for a period of 10 years after such allotment. The learned Judge further found that the suit filed by the appellant was not barred by law of limitation. The learned Judge further came to the conclusion that the appellant was not entitled for any specific performance of agreement and consequently dismissed the suit filed by the appellant.

(3.) SHRI S. G. Dessai, learned Senior Counsel appearing for the appellant has assailed the impugned judgment on the ground that the Lower Appellate Court has erroneously come to the conclusion that the suit filed by the appellant was barred by law of limitation. The learned Senior Counsel further points out that as per Article 54 of the Limitation Act, such suit can be filed within three years from the date of the performance of the agreement and/or in case no such date is fixed from the date when the vendor refused to comply with the terms of the agreement. The learned Senior Counsel further points out that from the evidence on record, it clearly manifest that after the execution of the agreement in 1985, the deceased Mahesh had renewed the agreement in 1988 and 1992 and considering the said dates, the suit was not barred by law of limitation. The learned Senior Counsel has taken me through the agreement executed between the parties and pointed out that it was incumbent upon the said Mahesh to take necessary steps to obtain a permission from the Communidade before the execution of the sale deed. The learned Senior Counsel further points out that the findings of the Lower Appellate Court to the effect that the wife of the said Mahesh was not party to the said agreement is erroneous. The learned Senior Counsel further points out that the wife of said Mahesh was required to be party only at the time of the execution of the sale deed and the question of making her the party at the time of execution of sale agreement would not arise at all. The learned Senior Counsel further took me through the impugned judgment and pointed out that the Lower Appellate Court has erroneously come to the conclusion that the Communidade was necessary party to the suit and further that the learned Judge has misappreciated the evidence on record and come to an erroneous conclusion that the appellant was not entitled for specific performance of agreement.