Oudh Behari Lal v. Radha Krishan — 1980 DIGILAW 1215 (ALL)

JUDGMENT Deoki Nandan, J. - This is a plaintiff's second appeal in a suit for specific performance of a contract for sale of two plots of land originally numbered 81 and 160 and now numbered 66 and 94. The agreement was said to have been arrived at orally on 1-7-1959 between the plaintiff-appellant and the defendant-respondent No. 1. The price agreed upon between the parties was Rs. 1600/-, out of which Rs. 1200/- was advanced by the plaintiff to the first defendant that very day. The terms of the agreement were, however, reduced to writing on 17-6-1960, vide-Ext. 11, and the remaining sum of Rs. 400/- was also paid by the plaintiff to the first defendant that day. The agreement recites these facts and further avers that the plaintiff was put into possession of the land, agreed to be sold, and that the sale deed was to be executed after publication of the notifications under Sections 52, 53 of the U. P. Consolidation of Holdings Act. The expenses for stamp duty and registration of the sale deed as also for depositing ten times the land revenue for obtaining Bhumidhari rights in the land were to be borne by the plaintiff. It appears that the notification under Section 52 of the U.P. Consolidation of Holdings Act was made on 31-12-1960 and the records were consigned on 5-4-1961 under Section 53 of that Act, vide-Exts. A-12 and A-13. It further appears from the extract of the revenue entries in C.H. Form No. 41, vide-Ext. 9, that the identity of the land, agreed to be sold, was not changed in the consolidation proceedings; only the plot numbers stood changed from old plot Nos. 81 to 94 and from old plot Nos. 160 to 66. The plaintiff alleged that in July, 1966 he paid Rs. 200/- to the first defendant for obtaining Bhumidhari rights in the land and asked him to convey the land, agreed to be sold, but the first defendant evaded doing so, hence the suit. The plaintiff proceeds on to allege that in case the court did not find it proper to decree specific performance, the plaintiff may be granted a decree for refund of the sum of Rupees 1800/- paid by him to the first defendant with interest thereon at Rs. 2% per month. The suit was filed on 25-5-67. The plaintiff proceeds on to allege that in case the court did not find it proper to decree specific performance, the plaintiff may be granted a decree for refund of the sum of Rupees 1800/- paid by him to the first defendant with interest thereon at Rs. 2% per month. The suit was filed on 25-5-67. An ex parte injunction was obtained restraining the first defendant from transferring the land in suit. The injunction was served on 26-5-1967. But, plot No. 94 was sold by the first defendant to the defendants Nos. 2 and 3 on 26-5-1967 by a sale deed, copy of which is Ext. A-6, for Rupees 3,000/-. Plot No. 66 was sold by the first defendant to defendants Nos. 4 and 5 for Rs. 1250/- by a sale deed executed on 28-7-1967, vide-Ext. A-5. Defendant No. 2 had already been impleaded as a party to the suit as originally instituted. Defendants Nos. 3, 4 and 5 were impleaded by amendment of the plaint after the two sale deeds. 2. The defendant No. 1 did not contest the suit. The other defendants denied the genuineness of the agreement to sell in the plaintiff's favour and pleaded that they were bona fide transferees for value without notice of the same. They also disputed the transfer of possession of the land by the first defendant to the plaintiff at the time of the execution of the agreement to sell in his favour. Other technical pleas were also raised. The trial court dismissed the suit as barred by time. The lower appellate court has confirmed the same. 3. Mr. S.P. Srivastava, learned counsel for the appellant, urged before me that no date was fixed for the performance of the contract and, therefore, limitation of three years, prescribed by Article 54 of the Limitation Act, 1963, started running from the date when the plaintiff had notice of the first defendants refusal to perform it. According to him the suit was filed as soon as the plaintiff had notice of the first defendant's refusal. 4. The first question which, therefore, arises in this case is whether any date was fixed for the performance of the contract under the agreement to sell. The agreement to sell does not fix any date for the performance of the contract. 4. The first question which, therefore, arises in this case is whether any date was fixed for the performance of the contract under the agreement to sell. The agreement to sell does not fix any date for the performance of the contract. All that it says is that after the publication of the notifications under Sections 52-53 of the U.P. Consolidation of Holdings Act, the sale deed would be executed. The other things required to be done were to obtain the Bhumidhari Sanad on payment of ten times the land revenue which was to be paid for by the plaintiff. The noticeable feature of the agreement is that the entire amount of sale consideration was paid by the plaintiff to the first defendant and possession was delivered by the first defendant to the plaintiff on the very date of the agreement itself. There could thus be no question of any delay on the part of the plaintiff in obtaining the sale deed, for all that he had to do was to pay the amount of ten times the land revenue payable for the land in suit in order to enable the first defendant to obtain Bhumidhari rights therein and then to pay the expenses on stamp duty and registration etc. in order to obtain a sale deed. The plaintiff alleged that he paid a sum of Rs. 200/- to the first defendant in July, 1966 for the said purpose. It was not necessary for the plaintiff to have explained the period of almost six years from the date of the publication of the notification under Section 52 of the U.P. Consolidation of Holdings Act in June, 1960 and the alleged payment of the amount of Rs. 200/- by him to the first defendant in July, 1966 for obtaining the Bhumidhari Sanad. The plaintiff was according to the terms of the agreement in possession. Most probably the real nature of the contract was that of a loan on the security of the land, but it had been given the term of a contract of sale in view of the provisions of Section 164 of the U.P. Z.A. and L.R. Act. Be that as it may, since no time was fixed by the agreement for performance of the contract, the limitation for enforcing it could be said to commence, under Article 54 of the Limitation Act. Be that as it may, since no time was fixed by the agreement for performance of the contract, the limitation for enforcing it could be said to commence, under Article 54 of the Limitation Act. 1963, only from the date when the plaintiff could be said to have had notice of the refusal of the defendant No. 1 to perform the agreement. According to the plaintiff's case he filed the suit as soon as he had such notice from the conduct of the first defendant after the alleged payment of Rs. 200/- by him for obtaining Bhumidhari rights. The contesting defendants have not put forward any date on which the plaintiff could be said to have had notice of the first defendant's refusal to perform his part under the contract of sale. The view of the lower appellate court that in view of the terms of the agreement and the facts alleged in the plaint, there was a specific date fixed for performance of the contract, does not appear to be correct in law. 5. It must, therefore, be held that the suit could not be said to be barred by time and could not be dismissed on that ground. 6. This brings me to a consideration of the merits of the plaintiffs claim. The lower appellate court has found it proved that the amount of Rs. 1600/- was paid by the plaintiff to the first defendant and that the agreement was genuine. There could be no question of the defendants being transferees for value without notice of the agreement inasmuch as the transfer in their favour was made during the pendency of the suit and was not, therefore, protected. However, it is obvious from the facts of the case that the plaintiff could not be said to have been always ready and willing to perform the part remaining to be performed by him under the contract. Indeed, there was no averment to the effect in the plaint. The consequence is that the claim for specific performance cannot be decreed in view of the provisions of Section 16 (c) of the Specific Relief Act. 7. That being so the plaintiff is only entitled to a refund of the sale consideration paid by him to the first defendant. The lower appellate court has found that the sum of Rs. 1600/- was paid by the plaintiff to the first defendant. 7. That being so the plaintiff is only entitled to a refund of the sale consideration paid by him to the first defendant. The lower appellate court has found that the sum of Rs. 1600/- was paid by the plaintiff to the first defendant. The plaintiff was on his own case in possession of the land, agreed to be sold to him, until he was dispossessed after the sale deeds in favour of the defendants Nos. 2 to 5. There could, therefore, be no question of awarding any interest to the plaintiff on the amount. However, since a long time has elapsed since the institution of the suit and the plaintiff has been deprived of the possession of the land in suit, it appears reasonable and just to award him pendente lite and future interest at the rate of 6% per annum. 8. Under Section 55 (6) (b) read with Section 100 of the Transfer of Property Act the plaintiff is further entitled to a charge on the land, which was agreed to be sold, for recovery of the amount decreed in his favour. 9. Mr. V.D. Ojha, learned counsel for the defendant-respondents Nos. 2 to 5, urged before me that no charge could be levied on the property in their hands. He relied on Jhandoo v. Ramesh Chandra ( AIR 1971 All 189 ) (at p. 191, column 1, end of para. 2): (1970 All LJ 969) wherein it has been observed that:- "The lower appellate court had even awarded a decree for interest under Section 55 (6) (b) of the Transfer of Property Act against the defendants-appellants. I do not see how this provision was applicable at all to the defendants-appellants in this case. The provision deals with liabilities of a defaulting seller to a purchaser." The principle laid down by this case is not applicable to the present case. No decree is being passed against the subsequent transferees. The decree is being passed only against the first defendant for the refund of the purchase price paid by the plaintiff to him. The charge on the property for the recovery of the same could undoubtedly be levied under Section 55 (6)b) read with Sec. 100 of the Transfer of Property Act. It is a mere chance in the present case that the transfer in favour of defendants Nos. 2 to 5 was lis pendens. 10. The charge on the property for the recovery of the same could undoubtedly be levied under Section 55 (6)b) read with Sec. 100 of the Transfer of Property Act. It is a mere chance in the present case that the transfer in favour of defendants Nos. 2 to 5 was lis pendens. 10. In the result, the appeal succeeds and is allowed. The decree under appeal is set aside. Instead, the suit shall be decreed against the defendant-respondent No. 1 for the recovery of Rs. 1600/- with pendente lite and future interest at the rate of 6% per annum. There shall be a charge for recovery of the said amount on the land of plot Nos. 68 and 94 of Village Ludhiani, Pergana and Tehsil Bhartana, district Etawah, in the hands of defendants Nos. 2 to 5. 11. The plaintiff shall be entitled to his costs throughout against the defendant No. 1.