R. M. S. KHANDEPARKAR, J. :- Heard learned advocate for the

ants, the respondent Nos. 1, 4 and 5. None present for the remaining dents though served.

This appeal arises from the Judgment dated 28-1-1987 passed by the Single Judge in First Appeal No. 88/1967. The learned Single Judge allowing the said first appeal has set aside the decree of dismissal dated 1-2-1967 passed by the Civil Judge, Senior Division, Chandrapur in Special Civil o. 16/1965 .

2. The trial Court had dismissed the suit on merits as well as on the point limitation, whereas the learned First Appellate Court held the suit to have been filed within the period of limitation and further directed partition of the land with direction to defendants to put the plaintiff in possession of his half share in the propriety and further direction for enquiry regarding the mesne profits.

3. Few facts relevant for the purpose of decision are that : The property g Survey Nos. 57,58,60 and 158 having total area of 51.13 acres, out of 25.50 acres of area, is the subject-matter of the present dispute. On 5-10-1949. the appellant who was the original defendant No. 1 in the suit had borrowed sum of Rs. 5000/- from the respondent No. 1 who was the original plaintiff, and had executed a Deed in relation to the suit property for sum of Rs. -. The suit property was resold to the appellant by the respondent No. 1 by dated 1-6-1950. Again on 20-9-1951 the appellant borrowed a sum of 00/- from the respondent and executed a deed in favour of the respondent in relation to the suit property for a sum of Rs. 7500/-. At the same time an agreement was executed for re-conveyance of the suit property to the appellant payment of the said loan on or before 3-6-1952. As the said loan was accordingly repaid, the respondent No. 1 executed a sale deed dated 3-6-1952 in ct of the suit property conveying the same in favour of the appellant for a of Rs. 7500/-. Thereafter, on 27-8-1952 the appellant again borrowed a sum . 8000/- from respondent No. 1 and executed a sale deed in respect of the propriety for a sum of Rs. 10,000/-, while executing a separate document as kararnama agreeing to repay the loan on or before 6th of June, 1953 and upon the respondent No.1 agreeing to re-convey the suit property in favour appellant. In spite of execution of such sale deeds since 1949 and even execution of sale deed dated 27-8-1952, the possession of the said property. Continued with the appellant. The appellant failed to repay the loan amount of Rs. V- by 6-6-1953. The parties thereupon on mutual oral agreement delivered session of 12 acres 33 gunthas out of the total area of 25.46 acres to the respondent No.1, so that he could enjoy crops therefrom for 12 years and thereby private the income towards the repayment of loan and on expiry of 12 years and to redeliver the possession to the appellant. Since then the half of the suit property had being retained by the respondent No. 1 while remaining half was being enjoyed and possessed by the appellant. On 26-8-1964, the respondent No. 1 filed suit before the Civil Judge, Junior Division, Warora s possession of the remaining half of the suit property on the ground that was already sold to the respondent No. 1 under the sale deed dated 2 The suit thereafter was withdrawn as the valuation of the suit was Rs. 25,000/- which was in excess of the jurisdiction of Civil Judge, Junior and the same was presented in the Court of Civil Judge, Senior Chandrapur and it was registered as Special Suit No. 16/1965. Trial hearing the parties, by decree dated 1-2-1967 though dismissed the suit being barred by law of limitation, held that the plaintiff had otherwise good case on merits against the defendants. The matter was carried in appeal by the No.1 being First Appeal No. 88/1967 and the learned Single Judge of this the impugned judgment and decree allowed the appeal as stated above. It be noted that meanwhile the respondent No.1 sold the area of 70 decimal No. 158 in f