[1.0] Present Second Appeal under Section 100 of the Code of Civil Procedure, 1908 has been preferred by the legal heirs of Haribhai Kanjibhai Barot appellants herein – original defendants against the judgment and decree dated 08.03.2001 passed by the learned 2nd Extra Assistant Judge, Kheda, at Nadiad in Regular Civil Appeal No.47 of 1995 by which the learned Appellate Court has dismissed the said appeal preferred by the appellants herein and has confirmed the judgment and decree dated 27.03.1995 passed by the learned Civil Judge (Senior Division), Kheda, at Nadiad in Regular Civil Suit No.853 of 1993 (old Special Civil Suit No.24 of 1981). [2.0] That the original plaintiffs instituted Special Civil Suit No.24 of 1981 against the defendant – his brother – partner of the partnership firm for recovery of Rs.21,000/ contending interalia that a registered partnership firm M/s. Kanjibhai Gordhandas Barot was in existence and plaintiffs, defendants and their father Kanjibhai, three were the partners of the said firm having 1/3rd share in the profit and loss and the properties of the firm. According to the plaintiffs their father Kanjibhai died on 14.01.1972. It was the case on behalf of the plaintiff that prior to his death Kanjibhai had executed a Will and one codicil in which certain properties which are not the properties of the firm shown and one half share of plaintiffs is mentioned in it. According to the plaintiffs three buildings or properties situated at Kalol bearing city Survey No.7/3/46, 7/1/54, and 7/3/184 are the properties of the firm which are not mentioned in the Will of their father. Those three houses were purchased out of the fund of the firm for Rs.42,999/. It was the case on behalf of the plaintiffs that In the year 1961 those three properties were obtained as a mortgage by paying Rs.42,999/ to one Punjabhai Pardhubhai Barot of Kalol who was the owner of those three properties and the amount was given to him by the firm out of firm's account. It was an equitable mortgaged transaction between the firm and the said Punjalal Barot. According to the plaintiffs on 23.12.1963, the said Punjabhai had executed a sale deed in favour of the firm of the three properties as against the consideration of mortgaged money which were given to him and the sale deed was got executed in the name of only one of the partner Haribhai i.e. the defendant. According to the plaintiffs, the Defendant Haribhai was managing the affairs of the firm and therefore, he had got executed certain documents in his name on behalf of the firm, such as the sale deed executed by Punjabhai with respect to three properties. According to the plaintiffs, the three properties belonged to the firm as money was paid by the firm to Punjabhai. According to the plaintiffs, the defendant had not paid any consideration amount to the firm or to anybody out of his own pocket. According to the plaintiffs, the defendant sold property No. 7/1/54 for Rs.21,000/ to Nathibai Punjabhai and properties Nos. 7/3/46 and 7/3/184 for Rs.21,999/ to Punjabhai Pardhubhai by registered sale deeds dated 31.08.1971 and the defendant had kept total consideration amount of Rs.42,999/ with him. Thus, according to the plaintiffs one half amount remained with the defendant which belong to the plaintiffs and therefore, after serving a notice upon the defendant on 03.12.1980, the plaintiffs filed the aforesaid suit and prayed for a decree of Rs.33,639/ in their favour. That the said suit was opposed by the appellants herein – original defendants solely and mainly on the ground that the suit is barred by law of limitation. After framing the issues and on appreciation of evidence, the learned trial Court held that the suit is not barred by law of limitation and from the date of knowledge of the execution of the sale deeds with respect to the three properties in favour of Nathibai Punjabhai and Punjabhai Pardhubhai Barot immediately within six months the suit has been filed for recovery of the amount to the extent of the share in the property of the partnership firm and accordingly the learned trial Court decreed the suit by judgment and decree dated 27.03.1995 directing the defendants to pay the amount of Rs.33,639/ with 6% interest.
[2.1] Being aggrieved and dissatisfied with the judgment and decree passed by the learned Civil Judge (Senior Division), Nadiad dated 27.03.1995 passed in Regular Civil Suit No.853 of 1993, the appellants herein – original defendants preferred Regular Civil Appeal No.47 of 1995 before the District Court, Kheda, at Nadiad and the learned Appellate Court – learned Extra Assistant Judge, Kheda, at Nadiad by impugned judgment and order dated 08.03.2001 has dismissed the said appeal confirming the judgment and decree passed by the learned trial Court.
[2.2] Feeling aggrieved and dissatisfied with the judgment and order passed by both the Courts below the appellants herein – original defendants have preferred the present Second Appeal under Section 100 of the Code of Civil Procedure, 1908.
[3.0] Shri Jigar Patel, learned advocate appearing on behalf of the appellants has vehemently submitted that both the Courts below have materially erred in holding that the suit was within the period of limitation. It is submitted that as the sale deeds were executed in favour of Nathibai Punjabhai and Punjabhai Pardhubhai Barot in the year 1971 and the plaintiffs instituted the suit for recovery of the said amount and/or share in the said amount in the year 1980, both the Courts below ought to have hold that the suit is barred by law of limitation. Therefore, it is requested to allow the present Second Appeal.
[4.0] Having heard Shri Jigar Patel, learned advocate appearing on behalf of the appellants and the learned advocates appearing on behalf of respondents and considering the judgment and order passed by both the Courts below and the relevant evidence from the R & P of the case, it appears that there are concurrent findings of fact given by both the Courts below holding that the suit is not barred by law of limitation as contended on behalf of the defendants. That the learned trial Court has specifically given the finding that the suit is within the period of limitation considering the knowledge of the transaction by the defendants. The findings of fact given by both the Courts below with respect to the limitation are on appreciation of evidence and cogent reasons have been given by both the Courts below in holding that the suit has been filed within the period of limitation. As the learned advocate appearing on behalf of the appellants has failed to point out how the findings of fact given by both the Courts below on the aspect of limitation is erroneous and/or perverse, learned advocate appearing on behalf of the appellants has failed to substantiate that the findings of fact given by both the Courts below are perverse and/or contrary to evidence on record. Considering the aforesaid facts and circumstances, when the suit has been held to be within the period of limitation and when no other submissions have been made, it cannot be said that both the Courts below have committed any error and/or illegality in passing the decree.
[5.0] In view of the above and for the reasons stated above, the present Second Appeal fails and the same deserves to be dismissed and is, accordingly, dismissed. No costs.
(M.R. Shah, J.) menon