JUDGMENT

Sanjay K Agrawal, J. - The substantial question of law involved, formulated and to be answered in this second appeal preferred by the appellant/plaintiff states as under :-

"Whether the finding recorded by the First Appellate Court that the suit was barred by limitation is contrary to law ?"

(For the sake of convenience, parties would be referred hereinafter as per their status and ranking shown in the suit before the trial Court.)

2. Suit property was originally held by plaintiff's father namely late Habeeb Miyan. It is the case of the plaintiff that his father gifted the suit property to him by a gift deed dated 15/01/1955 (Exhibit P/1) when he was a minor through her mother Jainab Bibi and since then he is in possession of the suit property by cultivating the same and his other brothers namely Mohammed Basheer and Allaudin, born out of the wedlock of Habeeb Miyan with his second wife, were residing separately. In the month of May, 1986, plaintiff came to know that defendants have got their names mutated in the revenue records on the basis of sale deed dated 22/12/67 (Exhibit D1A) allegedly executed by plaintiff's brother in favour of defendants No. 1 and 2 which compelled the plaintiff to institute civil Suit No. 264A/04 for declaration of title and permanent injunction stating inter alia that alienation made by plaintiff's brother in favour of defendants No. 1 and 2 by sale deed dated 22/12/67 (Exhibit D1A) is void and inoperative and not binding upon him, as such, he is entitled for decree as claimed.

3. Defendants No. 1 and 2 denied the plaint allegations by filing their written statement stating inter alia they have purchased the suit property from the brother of plaintiff after making payment of sale consideration of Rs. 2000/- and whole of the plaintiff's family knew about the sale and after execution of the sale deed dated 22/12/67, defendants are in possession of the suit property by cultivating the same and moreover, plaintiff's suit is barred by limitation and it deserves to be dismissed with cost(s).

4. Learned trial Court, upon appreciating the oral and documentary evidence on record, decreed the suit in favour of the plaintiff vide judgment and decree dated 12/09/2006 holding that the sale deed dated 22/12/67 (Exhibit D1A) allegedly executed by plaintiff's brother in favour of defendants No. 1 and 2 is void and inoperative and plaintiff is the exclusive owner of the suit property on the basis of gift deed dated 15/01/1955 (Exhibit P/1) executed by plaintiff's father in his favour. Learned trial Court also came to the conclusion that plaintiff's suit is not barred by limitation.

5. Being aggrieved, defendants No. 1 and 2 preferred Civil Appeal No. 11A/2006 under Section 96 of the CPC wherein learned first appellate Court, though maintained the finding of gift deed dated 15/01/1955 (Exhibit P/1) executed by plaintiff's father in his favour and that sale deed dated 22/12/1967 (Exhibit D1A) is void and further held that plaintiff is the title-holder of the suit property, but ultimately held that suit is barred by limitation under Article 59 of the Indian Limitation Act, 1963 and by its judgment and decree dated 08/01/2007 set aside the judgment and decree passed by the trial Court.

6. Questioning the said judgment and decree of the first appellate Court, this second appeal has been preferred by the plaintiff/appellant herein under Section 100 of the CPC wherein substantial question of law has been formulated and set out in the opening paragraph of this judgment.

7. Mr. Manoj Paranjpe, learned counsel for the appellant/plaintiff would submit that the first appellate Court was absolutely unjustified in setting aside the decree granted by learned trial Court in favour of the plaintiff by holding plaintiff's suit to be barred by Article 59 of the Limitation Act as D.W. 4 namely ShivPrasad and D.W. 6 namel