IN THE HIGH COURT OF JUDICATURE AT BOMBAY

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

CIVIL APPELLATE JURISDICTION

CIVIL APPELLATE JURISDICTION

SECOND APPEAL NO.243 OF 2005.

SECOND APPEAL NO.243 OF 2005.

SECOND APPEAL NO.243 OF 2005.

Gous Amir Jamadar, (since deceased)

through legal heirs

Nijumbee Gavas Jamadar & Others ..Appellants

versus

Bavaruddin Gavas Jamadar ..Respondent.

Mr. Amit B. Borkar for the Appellant

Coram : S.R.Sathe, J.

Coram : S.R.Sathe, J.

Coram : S.R.Sathe, J.

Dated : 18th December, 2006

Dated : 18th December, 2006

Dated : 18th December, 2006

P.C.

1. Heard learned advocate for the appellant.

From the perusal of the record and the submissions

made before me it is very clear that the suit for

specific performance of an agreement to reconveyance

dated 22.3.1966 was filed by the plaintiff, in the

year 1985. The learned trial Judge framed necessary

issues including the issue as to whether the suit is

in time and whether the plaintiff is entitled for

specific performance of the agreement to

reconveyance. After considering the evidence of

both the parties, the learned trial Judge has

dismissed the said suit. The said finding is

confirmed by the First Appellate Court. Being

aggrieved, the original plaintiff has filed the

present Second Appeal.

-2-

2. The learned Advocate for the appellant tried

to argue before me that usually in case of an

agreement to reconveyance or agreement to sale, time

is not the essence of the contract, unless it is

specifically made so in the agreement. While, in

the instant case, there is no specific agreement and

as such the suit cannot be dismissed on the ground

that the suit is filed 19 years after the execution

of the agreement to reconveyance. During the course

of argument, he submitted that he had in fact filed

a suit on the basis of the said agreement presuming

that he had remedy for redumption and accordingly he

filed the said suit, but the same was also dismissed

right upto High Court and as such he filed the

present suit. It is needless to say that plaintiff

could have claimed alternate remedy of specific

performance at that time, but he did not do so.

Considering all these aspects, there is no error of

law in the finding recorded by the courts below.

There is no substantial question of law involved in

the matter. Appeal is dismissed in limine.

(S.R.Sathe, J.)

(S.R.Sathe, J.)

(S.R.Sathe, J.)