JUDGMENT (PER SMT. ROSHAN DALVI, J.)

1. The Appellants are the original Defendant s in the above Suit. They were sued upon an unregistered agreement dated 15th April, 1988 executed by them with the Respondent s on 15th April, 1988 for purchase of a Flat No.G- 30 in Army Welfare Co-operative Society (Organisation), Salunkhe Vihar at Pune for Rs.3,23,000 / - . The Appellants paid Rs.2,98,000 / - to the Respondent s out of the aforesaid consideration. They have been put in possession. They have remained in possession since.

2. The Respondent No.1 is a retired Army Officer. He was allotted the said premises. The said premises could be transferred only to the persons declared eligible for allotment of such dwelling units. It is the case of the Respondent s that the Appellants were not eligible but made representation to the Respondent s that they were eligible and consequently made members of the Society pursuant to which they executed agreement for sale in their favour. They later found out that the representations made by them were fraudulent. Hence, they sued the Appellants for declaration that the agreement is void and not binding on them and for recovery of the possession of the flat from the Appellants. In the alternative they have prayed for payment of the balance consideration Rs.25,000 / - with interest at the rate of 18% p.a and consequential expenses incurred by them in the execution of the agreement.

3. The agreement has been entered into on 15th April, 1988. The Suit was filed on 3rd December, 1998. The Appellants therefore, contend that the suit is barred by limitation. The learned Judge has considered the issue of limitation under Article 65 of the Limitation Act. He has computed the period of 12 years from the date of the agreement as the period available to the Plaintiffs to sue.

4. The Respondent s as the Plaintiffs sued for declaration of the voidability of the agreement. The suit, therefore, fell within Article 58 of the Limitation Act.

5. The chronology of the events and dates would be required to be considered initially to determine whether the right to sue accrued to the Respondent s as the Plaintiff's within 3 years of the execution of the agreement itself or thereafter. The Appellants were put in possession of the suit premises on the date of the execution of the agreement itself on 15th April, 1988. The irrevocable Power of Attorney was executed by the Respondent s in favour of the Appellants on 12th April, 1988. The nomination form in favour of Appellant was executed by the Respondent on 17th April, 1988. A public notice about the trans action was given on 25th June, 1989. The Respondent No.1 received a letter of the Army Welfare Organisation on 8th June, 1990 refusing permission to sell or transfer the suit premises to the Appellants. The Respondent s, therefore, had knowledge that the sale could not go through since June, 1990.

6. It is the case of the Appellants that they pursued the transaction on behalf of the Respondent s for many years thereafter and that much later on 28th May, 1998 a letter came to be addressed by the Army Welfare Organisation to Appellant No.1 informing her that the Respondent No.1 continued in the records of the Army Welfare Association as owner of the suit flat and that she may pursue her transfer application with the society since the flat has been transferred to Salunkhe Vihar Society. The Respondent s have contended that, that letter (not addressed to the Respondent No.1) but addressed to Appellant No.1 saved the bar of limitation and the suit having being filed on 3rd December, 1998 could not be dismissed as having been barred by limitation. The learned Judge has considered the issue of limitation on entirely different point. He has held that the suit will be governed by Article 65 of the Limitation Act since it relates to recovery of possession of immovable property. The suit is essentially for declaration that the agreement dated 15th April, 1988 executed between the par

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