Smt. Antonetta Da Silva (since deceased) Through her legal representatives and Jose D''Souza and Francisco D'' Souza vs Shri Conceicao Aleixo da Silva and his wife and Others

A. P. Lavande, J.—Heard Mr. P. P. Singh, learned Counsel appearing for the appellants and Mr. Usgaonkar, learned Counsel appearing for respondent no.5. The appellants have also filed brief synopsis of submissions and relied upon several authorities. By this appeal, the appellants take exception to the judgment and decree dated 5th December, 2009 passed by the District Judge-2, South Goa, Margao in Regular Civil Appeal no. 82/2009 dismissing the appeal filed by the appellants/ plaintiffs against the judgment and decree dated 29th June, 2009 passed by Civil Judge, Junior Division, ''C'' Court, Margao in Regular Civil Suit No.214/1996/C.

The appellants/ plaintiffs filed the above suit seeking declaration and injunction. They claimed that they had 1/3rd share in the suit property. The plaintiffs challenged the sale deed dated 7th October, 1990 executed by defendant nos. 1 to 4 in favour of defendant no.5 in respect of 400 square meters forming part of the suit property. They also challenged the partition deed dated 25th August, 1978 by which the title in the suit property was vested in the defendant nos. 1 to 4. Defendant no.5 filed counter claim and sought injunction against the plaintiffs in respect of 400 square meters of land purchased by him. The Trial Court on appreciation of the evidence led by the parties held against the plaintiffs. The Trial Court held that the plaintiffs had not proved their title to the suit property and further held that defendant nos. 1 to 4 had authority to execute the sale deed in favour of defendant no.5. However, the Trial Court answered the issue of limitation against the defendants on the ground that they have not led evidence.

The Lower Appellate Court concurred with the findings of the Trial Court except regarding limitation. The Lower Appellate Court held that the suit was barred by limitation since the suit in so far as the challenge to partition deed dated 25th August, 1978 is concerned was barred by limitation since the original plaintiff Antonetta Da D''Silva had knowledge about the same in the year 1978 and as such, the suit filed in the year 1996, was clearly barred by limitation.

Having heard learned Counsel for the appellants and respondent no.5 and having perused the written submissions submitted on behalf of the appellants, I am of the considered opinion that no case has been made out for admission of the second appeal. The finding given by the Lower Appellate Court that the suit was barred by limitation, cannot be faulted in as much as Francisco D'' Souza, who was examined on behalf of the plaintiffs clearly admitted in his cross-examination that Antonetta was aware about the partition deed executed in the year 1978, in the same year. Consequently, the finding of the Lower Appellate Court that the suit challenging the partition deed executed in the year 1978 was barred by limitation, cannot be faulted. Moreover, sale deed dated 7th October, 1990 was executed by defendant nos. 1 to 4 in favour of respondent no.5 on the strength of the title derived from the partition deed. This being the position, the finding of the Lower Appellate Court that the suit was barred by limitation, cannot be faulted. The Lower Appellate Court was right in holding that Section 3 of the Limitation Act casts duty on the Court to decide ''whether the suit was filed within limitation irrespective of the fact whether either of the parties lead evidence or not''.

In view of the above, I do not find any merit in this second appeal. No substantial question of law is involved in the appeal. I do not deem it necessary to deal with the other contentions and the authorities relied upon by Mr. Singh since they do not advance the case of the appellants. In view of the above, the appeal is dismissed.