Sreedharan Moothathu v. Varkey — 1950 DIGILAW 126 (KER)

Judgment :- 1. These are connected appeals from the decrees and judgments of the District Munsiff of Ettumanoor in O.S. 920 of 1118 and O.S. 200 of 1119 of his court. The 2nd defendant in O.S. 920 of 1118 is the appellant in A.S.165 of 1122 and the 3rd defendant is the appellant in A.S. 619 of 1122. The plaintiff in O.S. 200 of 1119 is the appellant in A.S.186 of 1124. The two suits were jointly tried and the evidence was recorded in O.S. 920 of 1118. 2. O.S. 920 of 1118 was for the specific performance of a contract for sale. The 2nd plaintiff and two others were holding the suit properties on a kanom demise from the illom of defendants 1 to 3. Defendants 1 and 2 on behalf of their illom sued in O.S. 883 of 1104 for arrears of michavaram and other dues and obtained a decree. Plaintiffs 1 and 4 who were impleaded as additional defendants 3 and 6 in that suit remained exparte. In execution of the decree in O.S. 883 of 1104 defendants 1 and 2 brought the suit properties to sale and purchased the kanom right in court auction. Thereafter the present plaintiffs 1 and 4 (defendants 4 and 6 in that suit) filed an application to set aside the exparte decree against them. While that application was pending the parties entered into Ext. J compromise by which the validity of the decree and the court sale was admitted by the plaintiffs and the application of plaintiffs 1 and 4 to set aside the exparte decree was agreed to be withdrawn. The possession of the properties sold was handed over to defendants 1 and 2 and it was agreed that if the plaintiffs pay to the defendants Rs. 1275 within three years of the date of the compromise the plaint properties will be sold to the plaintiffs. Plaintiffs were ready and willing to take the sale on payment of the stipulated amount. On 10.11.1115 they tendered the money and demanded the 2nd defendant the manager of the illom for the execution of the sale deed. He stated that on account of disputes between him and the first defendant regarding their family affairs the sale could not be executed then. On 10.11.1115 they tendered the money and demanded the 2nd defendant the manager of the illom for the execution of the sale deed. He stated that on account of disputes between him and the first defendant regarding their family affairs the sale could not be executed then. However he authorised the plaintiffs to take possession of the plaint properties and stated that the sale deed can be executed after the settlement of the family disputes. In pursuance of this the plaintiffs took possession of the plaint properties. On further demands thereafter the execution of the sale was put off for the same reason as before. Finally when money was tendered on 13.11.1118 and plaintiffs pressed for the execution of the deed of sale defendants refused to do so. On these allegations plaintiffs have brought the suit to enforce the agreement embodied in the compromise and compel defendants 1 to 3 to execute a sale of the plaint properties in their favour. Plaintiffs stated in the plaint their willingness to pay the consideration stipulated in the agreement and after filing the suit have on 26.11.1118 deposited the amount in court. Defendants 2 and 3 in separate written statements denied the plaintiff's right to enforce specific performance of the contract. They contended that there was no offer of any money or demand for the execution of the sale deed either on 10.11.1115 or thereafter. The allegation that the plaintiffs were authorised to take possession of the property and that they are so in possession was also denied. The plaint properties were stated to be in the possession of the 2nd defendant's lessee one Sankaran Nair. It was also contended that the suit was barred by limitation. The 3rd defendant further pleaded that defendants 1 and 2 were not competent to enter into an agreement to sell illom properties and that the agreement is not valid and binding on the illom. 3. After the institution of O.S. 920 of 1118, 2nd defendant as plaintiff filed O.S. 200 of 1119 for recovery of the plaint properties with arrears of rent against Narayanan Nair the lessee and against the plaintiffs in O.S. 920 of 1118 on the allegation that the latter were holding the properties under Narayanan Nair having entered possession in collusion with him. The learned Munsiff repelled the contentions of the defendants in O.S. 920 of 1118 and decreed the suit. The learned Munsiff repelled the contentions of the defendants in O.S. 920 of 1118 and decreed the suit. Consistently with his findings in O.S. 920 of 1118, O.S. 200 of 1118 was dismissed. 4. A.S.165 of 1122 and A.S. 619 of 1122 may first be considered. 5. The first question for consideration in these appeals is whether the plaintiffs were ready and willing to perform their part of the contract within the three years mentioned in Ext. J. Ext. J is dated 10.11.1112 and it was filed in court on 17.11.1112 and accepted by the court on 18.11.1112. The case of the plaintiffs in paragraph 6 of the plaint is that they offered the sum of Rs. 1275/- stipulated in Ext. J on 10.11.1115 and demanded the 2nd defendant who was the manager of the defendant's illom to execute the sale deed that the 2nd defendant pleaded inability to execute the sale deed then on account of the dispute between himself and the first defendant regarding their family affairs and that he allowed the plaintiffs to take possession of the plaint properties under the promise that the sale deed will be executed later. 8. The facts and circumstances of the case clearly indicate that plaintiffs had virtually abandoned their right to get a sale of the property as provided in Ext. J. Even according to the plaintiffs the suit was filed only on the last day of limitation. No doubt just before the filling of the suit the plaintiffs appear to have made a frantic effort to obtain the sale of the property. For this they requested the help of P.W. 3. He appears to have made an earnest endeavour to induce the defendants to sell the property to the plaintiffs. But the defendants then refused to execute the sale deed. It is doubtful whether the plaintiffs had any money to pay even then. For we see that the money for deposit in court was raised only on 25.11.1118, more than a week after the institution of the suit. In these circumstances, we are unable to hold that plaintiffs are entitled to the specific enforcement of the contract for sale as prayed for. 9. Ext. J was signed on 16.11.1112. The suit was filed on 16.11.1118. In these circumstances, we are unable to hold that plaintiffs are entitled to the specific enforcement of the contract for sale as prayed for. 9. Ext. J was signed on 16.11.1112. The suit was filed on 16.11.1118. The learned Advocate for the appellant argues that in computing the period of three years stipulated in the document the day on which the document was executed cannot be excluded. Therefore according to him the time fixed for the performance of the contract expired on 15.11.1115 and the suit ought to have been brought within three years of that date under Art. 101 of the Limitation Act, i.e., on or before 15.11.1118. The suit filed on 16.11.1118 is therefore contended to be barred by limitation. We are inclined to think that in cases of this description in reckoning the period stipulated in the document the date on which the document was executed must be excluded. The decisions reported in Upendra Chandra Singh v. Mobri Lal Marwari (I.L.R. 31 Cal. 745) and Venkubai v. Lekshman Venkoba Khot (I.L.R.12 Bom. 617) lend support to this view. However we do not think it necessary to consider this question in detail in this case, for, even apart from the question of limitation, the suit has to fail on the merits. 10. Therefore in reversal of the decree of the lower court, we allow A.S.165 of 1122 and A.S. 619 of 1122 and dismiss plaintiff's suit with costs throughout. 11. A.S.186 of 1124 may next be considered. As already stated the suit was for recovery of properties with arrears of rent. Ext. III is the lease deed in question. It is admitted by the 1st defendant the lessee. He states in his written statement that he was in possession of the plaint properties as lessee and that the 2nd defendant and others entered the properties in Kanni 1119 under the false plea that the plaintiff has leased the properties to them. The plaintiff as D.W.1 swears that his lessee the 1st defendant was in possession of the properties and that he in collusion with defendants 2 onwards allowed them to enter the properties. The plaintiff as D.W.1 swears that his lessee the 1st defendant was in possession of the properties and that he in collusion with defendants 2 onwards allowed them to enter the properties. We have already found in A.S.165 and 619 of 1122 that the case of the plaintiffs therein in paragraph 6 of the plaint that they were authorised to take possession of the properties as also their case that they continued in possession of the properties after Ext. J as pathivaram lessees are both untrue. Therefore defendants 2 to 6 must have come into possession of the properties in collusion with the lessee as sworn to by D.W. 1. We believe D.W.1 and hold that defendants 2 to 6 are in possession of the properties under the 1st defendant. D.W.1 swears that rent is in arrears as stated in the plaint. There is no plea that the rent has been discharged. Defendants 2 to 6 who are in possession under the first defendant are also liable for the future rent claimed in the plaint. Plaintiff is therefore entitled to a decree in terms of the plaint. 12. Therefore in reversal of the decree of the trial court we allow this appeal and decree the suit in terms of the plaint with costs throughout. Appeal allowed.