Regular second appeal denied when there is absence of any perversity and concurrent findings of fact: High Court of Bombay at Goa
In the present, a regular second appeal has been filed against the Judgments and Decrees dated 06.06.2019 and 06.03.2021 made by the learned Trial Judge and First Appellate Court directing the present appellants to hand over vacant possession of the suit flats to the respondents. A single-judge bench comprising of justice M.S. Sonak adjudicating the matter of Prakash Pote v. John Cruzinho Gonsalves (SECOND APPEAL NO.1109 OF 2021) dealt with an issue of whether to grant the Regular Second Appeal or not.
The Trial court previously held that the defendants have no subsisting right, title, or interest in the suit flats and therefore, they should hand over the vacant possession of the suit flats to the plaintiff, and hence the second appeal is filed.
The substantial question of law in the present case was “Whether the suit filed by the respondents was barred by the law of limitation?”
The appellants contended that the suit was barred by the principles of res judicata or for that matter any other issue. He submitted that from the reading of the plaint, it is evidence that the suit was ex facie barred by the law of limitation. It was submitted that it was the case of the plaintiffs that they were illegally and unauthorizedly dispossessed by the defendants from the suit flats on 07.12.1987 Also it was submitted that the impugned decrees have been made was instituted only on 20.11.2012 i.e. way beyond the prescribed period of limitation of 12 years and the suit was ex facie barred by the law of limitation and the two courts exceeded their jurisdiction in decreeing such suit. It was also pointed out that the issue of limitation has to be taken up by the courts whether or not the same may have been raised by the defendants.
The Respondents submitted that there is no question of law involved in the present case. It was submitted that there are concurrent findings of fact and in absence of any perversity, the Second Appeal may not be entertained. In this case, the defendants had claimed to have entered into possession of the suit flats based on an agreement for sale. The defendants instituted a suit for specific performance of the said agreement which was dismissed on 27.11.2000. This decree was appealed by the plaintiffs since there were some directions for the return of some amounts. In any case, the suit was instituted on 20.11.2012 i.e. well within 12 years from the date the defendants’ suit for specific performance came to be dismissed and it was established that the defendants have no right or authority of whatsoever nature to continue in the suit flats. Also, it was submitted that the plaintiffs had issued notice to the defendants to accept the amounts in terms of the decree dated 27.11.2000 and thereafter hand over the possession of the suit flats. Despite the receipt of the notice, the defendants neither accepted the amount nor vacated the suit flats. Such notices were issued in the year 2012 and the suit was also instituted on 20.11.2012 and hence the suit is not barred by the limitations.
The court held that,” There is no dispute whatsoever that the defendants had claimed and even succeeded at one stage in justifying their possession of the suit flats based on the provisions of Section 53A of the Transfer of Property Act. It was the specific case of the defendants that they were put in possession of the suit flats in pursuance of the agreement dated 25.03.1987 and therefore, they were entitled to hold on to such possession. Based upon this plea even the suit instituted by the mother of the plaintiffs came to be dismissed. 17. Therefore, once the defendants’ suit seeking specific performance of the agreement dated 25.03.1987 came to be dismissed on 27.11.2000 and which dismissal was not even questioned by the defendants, the possession of the defendants in the suit flats became illegal and unauthorized with effect from 27.11.2000. a suit had to be filed within 12 years from the date of the possession of the defendants becoming illegal and unauthorized. In this case, the suit was instituted on 20.11.2012 i.e. within 12 years from 27.11.2000. The suit was therefore instituted within the limitation period as prescribed. Therefore, even accepting the contention of Mr. Costa Frias about the manner of computation, the suit, in this case, has been filed well within the prescribed period of limitation. No substantial question of law as proposed therefore arises in this matter.”