JUDGMENT :

Anil L. Pansare, J.

The appellants/legal representatives of original plaintiff have filed the present Appeal against the respondents/original defendants assailing the judgment and decree dated 20.03.2010 passed by learned Extra Joint Adhoc District Judge, Nagpur in Regular Civil Appeal No.159/2008 thereby dismissing the appeal arising out of the judgment and decree dated 11.01.2008 passed by learned Joint Civil Judge, Sr.Dn., Nagpur in Special Civil Suit No. 867/1992. The appellants shall be hereinafter collectively referred to as 'plaintiff' and the respondents as 'defendants'.

2. The Appeal has been admitted on the following substantial questions of law :-

(i) Whether the Courts below committed an error in holding that the suit was barred by limitation particularly when the agreement Exh.61 does not fix time limit for execution of sale?

(ii) Whether the Courts below have committed an error in ignoring Exh.69 i.e. the last payment dated 29.11.1989 while considering the issue of limitation?

3. The relevant facts are as under ;

The plaintiff filed a suit for specific performance of contract. According to plaintiff, the defendant nos.1 to 4 and late Smt. Mainabai Kolbaji Kalar agreed to sell the suit property bearing Nagpur Municipal Corporation No. 395, Ward No.72, NIT Plot No.208 admeasuring 2164 sq.ft. ("suit property" in short). The agreement to sell was executed on 29th June 1987. The agreed consideration amount was Rs.1,50,000/-. The plaintiff has paid Rs. 10,000/-as an earnest amount. The defendant-deceased Mainabai has allegedly agreed to get all the necessary documents for execution of sale deed and also to vacate the suit property from the occupants. The sale deed was to be executed within six months from the date of intimation by the defendants to the plaintiff as regards suit property having been vacated by the occupants. The balance consideration was to be paid at the time of execution of the sale deed.

4. It is the case of the plaintiff that he pursued for sale deed but the defendants avoided the same for one reason or the other. In the meantime, the plaintiff has paid to the defendants an amount of Rs. 22,950/-. On 03.04.1989, the defendants issued notice to the plaintiff of their inability to get the suit property vacated from the occupants and further to execute the sale deed. The defendants asked the plaintiff to take back the earnest amount.

5. The defendants resisted the claim on multiple counts - one of which was that the suit was barred by limitation. Both the Courts below have rendered a concurrent finding that suit is indeed barred by limitation. The first Appellate Court referred to Article 54 of the LIMITATION ACT , 1963. It provides for limitation of three years for filing a suit for specific performance of contract from the date fixed for the performance or if no such date is fixed, when the plaintiff has noticed that the performance is refused.

6. Admittedly, in the present case, the plaintiff has noticed the refusal when the defendants vide notice dated 03.04.1989 (Exh. 71) informed the plaintiff of their inability to vacate the suit property and to execute the sale deed. The defendants have also requested the plaintiff to come to their house and to collect the earnest amount forthwith. The plaintiffs instead of collecting the amount thought it appropriate to dash off a reply to the notice and pursue their claim.

7. The first Appellate Court has held that the period of limitation would commence from 03.04.1989 when the defendants issued notice to the plaintiff. The first Appellate Court has then referred to evidence of the plaintiff.

8. Prior to commenting upon the evidence of the plaintiff, it will be appropriate t