K. NARAYAN REDDY v. RAMAKRISHNA REDDY — 1999 DIGILAW 677 (KAR)

VALLINAYAGAM, J. ( 1 ) THE defendant in O. S. No. 2400/85 has preferred the above appeal in R. F. A. No. 766/95 while the plaintiff in the very same suit has filed r. F. A. No. 768/95. . While defendant is aggrieved by the fact that a suit has been decreed, the plaintiff is aggrieved by the fact that the marginal land has not been made subject matter of the decree for specific performance. ( 2 ) THE facts of the plaintiff's case in brief are that :" On 17. 12. 1975 the defendant entered into an agreement of sale with plaintiff agreeing to sell the building site bearing CITB no. 18-A, First Phase, Gokul I Stage, Bangalore and also adjacent margin land, agreeing to sell the same at the rate of Rs. 1357- and Rs. 95/- respectively per square yard. The defendant had agreed and undertaken to pay necessary layout charges, taxes' and other amounts and rates to the city Improvement Trust Board in respect of the margin land and obtained possession certificate from the CITB and to deliver the same to plaintiff. The defendant had represented that necessary documents including possession certificate pertaining to the said site and the margin land (after obtaining the same from CITB) would be delivered to the plaintiff. On that day, that is on 17. 12. 1975 the plaintiff paid the defendant an amount of Rs. 16,0007- as advance and part of the purchase money. Apart from the said amount, the defendant also received a sum of Rs. 18,000/- on 1. 6. 1976 and Rs. 5,000/- on 6. 7. 1982 of which the later payment was received by the defendant in the presence of one Sri Govnidaraju son of Sri Krishna Reddy of yeshwanthapur. The defendant has not issued receipt in respect of the said two amounts. Though the defendant had represented and assured the plaintiff that he would deliver all the necessary documents including the possession Certificate and other documents in respect of the margin land after securing the same from the CITB (now BDA) with in a short time, but the defendant failed and neglected to act up to his promise and undertaking. The plaintiff was put in possession of the suit schedule property by the defendant in pursuance of the agreement dated 17. 12. 1975 and also in part performance of the contract of sale. The plaintiff was put in possession of the suit schedule property by the defendant in pursuance of the agreement dated 17. 12. 1975 and also in part performance of the contract of sale. The plaintiff after obtaining possession of the suit schedule property from the defendant had leased out the site to one Sri Mohammed Salahia son of Mohammed Ghouse who had executed rental Karaar in favour of plaintiff on 30. 05. 1977 which document has been attested by the defendant. The plaintiff is collecting the rents from the said tenant. The parties have all along treated the agreement as subsisting and that the time is not the essence of Contract. Out of the total amount of Rs. 45,342/- payable by the plaintiff. He has paid total sum of Rs. 39,000/- to. the defendant as referred to above. The plaintiff has been all along ready and willing to perform his part of the contract to pay balance consideration of rs. 6342/- repeated requests and demands to the defendant. Inspite of plaintiff's repeated requests and demands, the defendant has failed and neglected to fulfil his obligation under the Contract. The plaintiff got issued legal notice dated 8. 6. 1985 calling upon the defendant to receive the balance consideration and to execute and register the sale Deed after delivering the possession certificate and other documents which notice has been received. by the defendant on 13. 6. 1985. The defendant who had received the notice has not chosen to comply with Demand made therein. Now it is learnt that the defendant has been making unduly hasty attempts to dispose of the suit schedule property with the sole intention of ulterior motive of defeating with the just claim of the plaintiff and to cause wrongful loss to him and to make wrongful gain for himself. Cause of action for the suit arose on 17. 12. 1975 the date on which the suit agreement of sale was. executed by defendant and on subsequent dates that is 1. 6. 76, 5. 7. 82 the date on which the defendant had received advance amounts of rs. 18,0007- and Rs. 5,000/- respectively and subsequently when the defendant failed and neglected to comply with the demand made in the notice dated 8. 6. 1985 and received by the plaintiff on 13. 6. 6. 76, 5. 7. 82 the date on which the defendant had received advance amounts of rs. 18,0007- and Rs. 5,000/- respectively and subsequently when the defendant failed and neglected to comply with the demand made in the notice dated 8. 6. 1985 and received by the plaintiff on 13. 6. 1985 and subsequently when the specific performance of the contract is deemed to have been refused by the defendant. Hence this suit for a decree directing the defendant to execute the Sale Deed and have the same registered after receiving the balance of Sale Consideration of Rs. 6342/- from the plaintiff and on the failure of the defendant to execute the Sale Deed, the Court may have the same executed and registered at the cost of the plaintiff and restraining the defendant from disposing of and alienating the schedule property and from interfering with the plaintiff's peaceful and lawful possession and enjoyment of the schedule property etc. ( 3 ) THE plaintiff got amended his plaint subsequently by including further contentions that the defendant is bound in law and in fact, to obtain necessary possession Certificate from the City improvement Trust Board (now BDA) in respect of margin land described in the schedule after paying the necessary layout charges, taxes, etc. , and then to execute the sale deed in favour of the plaintiff as agreed to and undertaken under the agreement dated 17. 12. 1975 and also prayed for directing the defendant to obtain possession certificate in respect of the marginal land described in the suit schedule by paying necessary taxes, rates, etc. , to the then CITB (now BDA) and to execute and register the Sale Deed in favour of the said agreement of Sale in favour of plaintiff after receiving balance consideration from the plaintiff. ( 4 ) THE defendant has contested the suit and has filed his written statement admitting about the execution of the suit agreement of sale dated 17. 12. 1975 agreeing to sell the suit schedule property and adjacent marginal land at the rate of Rs. 135/- and Rs. 95/ - respectively per square yard after receiving advance amount of rs. 16,000/- from the plaintiff. However, he has denied that he represented that the necessary documents including possession certificate pertaining to site No. 18-A and the marginal land would be delivered to the plaintiff. 135/- and Rs. 95/ - respectively per square yard after receiving advance amount of rs. 16,000/- from the plaintiff. However, he has denied that he represented that the necessary documents including possession certificate pertaining to site No. 18-A and the marginal land would be delivered to the plaintiff. Further he has contended that the amount of Rs. 16,000/- was paid to him as advance but not as part of purchase money by the plaintiff. Further he has denied about the receipt of amount of Rs. 18,000/- and Rs. 5,000/ - on 1. 6. 76 and 6. 7. 82 respectively. One Sri Govinda Reddy referred to in the plaint is a welt-wisher and close relative of the plaintiff and he is on enmical terms with the defendant. The plaintiff taking advantage of this fact has cleverly mentioned the name of the said Govinda Reddy who is ready to support the plaintiff in all his activities to cause loss to the defendant. The defendant had not promised or undertook to deliver the document to the plaintiff as stated in para 6 of the plaint. The defendant has also denied that in pursuance of the agreement dated 17. 12. 75 and also in part performance of the contract of sale, the plaintiff was put in possession of the suit schedule property by him and also about the plaintiff leasing the site to one Mohammed Salahia on 30. 5. 77 and also about the rental karaar and also about he attesting that rental karaar. Further said rental Karaar is forged and concocted document in collusion between plaintiff and Mohammed Salahia to defeat the right of the defendant in respect of the suit schedule property. Further under the agreement of sale dated 17. 12. 75 the time was the essence of the contract and the said agreement was cancelled and terminated since the plaintiff failed to perform his part of the contract within the time stipulated as agreed upon and the said agreement was not treated as subsisting by the parties. Further the plaintiff was not at all ready and willing to perform his part of the contract within the stipulated time. Since the legal notice dated 8. 6. 85 was issued after expiry of more than 9 years 5 months from the date of agreement of sale, the defendant did not choose to send any reply to that notice. Further the plaintiff was not at all ready and willing to perform his part of the contract within the stipulated time. Since the legal notice dated 8. 6. 85 was issued after expiry of more than 9 years 5 months from the date of agreement of sale, the defendant did not choose to send any reply to that notice. Further the defendant has denied that he made attempts to dispose of the schedule property as alleged. Further, the defendant being the owner of the Schedule property entered into agreement of sale to sell the same since he was badly in need of money to discharge his debts and under the agreement referred to above one month's time was stipulated with in which time it was agreed that the plaintiff should approach the defendant with the balance consideration, after deducting Rs. 16,000/- paid on the date of agreement of sale so as to complete the sale transaction. But the plaintiff did not paid the defendant. Therefore, the agreement of sale was terminated and the contract between the plaintiff and defendant came to an end. Further plaintiff was never ready and willing to perform his part of contract and he has committed breach of the terms of the agreement, as such, he is not entitled for any decree for specific performance of the agreement of sale. Further after termination of contract of sale the defendant leased the suit schedule property in favour of one Mohammed Salahia for a monthly rent of Rs. 250/- arid the said Mohammed Salahia is in possession of the same as tenant under him doing timber business therein from 1. 5. 77. The said Mohammed Salahia was paying rent to the defendant from the date of lease and the defendant was making entries regarding receipt of rent in a note book maintained by the tenant. The said Mohammed Salahia paid the rent to the defendant up to the end of May 1985 and stopped paying the rent for the month of June 1985 at the instance of the plaintiff. The plaintiff has violated the terms of the contract. The suit as filed is not maintainable in law. The suit filed by the plaintiff is of more than 9 years from the date of agreement of sale, as such the same is barred by law of limitation. The plaintiff has violated the terms of the contract. The suit as filed is not maintainable in law. The suit filed by the plaintiff is of more than 9 years from the date of agreement of sale, as such the same is barred by law of limitation. Further when the defendant entered into the agreement of sale, the defendant was heavily indebted and in order to discharge the said debts he has entered into agreement of sale with the plaintiff. The plaintiff who was aware of the indebtedness of the defendant, took unfair advantage of the same and the result is the agreement of sale. Inspite of the fact, the defendant was ready and willing to perform his part of the contract, the plaintiff did not come forward with in the time stipulated to pay the amount and to complete the sale transaction, as a result of which the defendant was compelled to sell his other properties and discharge the debts due. There is no cause of action for the suit and the alleged one is false. The plaintiff is not entitled for any of the reliefs. Hence prayed for dismissal of the suit with costs. ( 5 ) AFTER the plaintiff amended the plaint, the defendant filed additional written statement denying the averments of the amended plaint and contended that he was not bound in law to obtain necessary possession certificate from the CITB (now BDA) in respect of the margin land described in the schedule. The plaintiff is not entitled to seek such relief under law as Bangalore development Authority Act prohibits reconveyance of marginal land. The plaintiff is not entitled to direct the defendant to fulfil the obligations when plaintiff has not discharge his obligations and duties under agreement of sale dated 17. 12. 75. The relief sought for by way of amendment is barred by time. There is no provision in the BDA Act or the Rules framed there under to enable the BDA to reconvey the sites in favour of the defendant. The reconveyance scheme is opposed to the said Act. " the following issues are framed as follows:"1. Whether the plaintiff proves that he paid a sum of Rs. 18,000/ - on 1. 6. 76 and Rs. 5,000/- on 6. 7. 82 to the defendant in addition to the payment of Rs. 16,000/- on 17. 12. 75 towards part of the sale consideration? 2. " the following issues are framed as follows:"1. Whether the plaintiff proves that he paid a sum of Rs. 18,000/ - on 1. 6. 76 and Rs. 5,000/- on 6. 7. 82 to the defendant in addition to the payment of Rs. 16,000/- on 17. 12. 75 towards part of the sale consideration? 2. Whether the plaintiff proves that he has been in possession of the suit schedule property in part performance ot the contract of sale? 3. Whether the plaintiff proves that he has been always ready and willing to perform his part of contract? 4. Does the defendant prove that the time is the essence of. the contract? 5. Whether the defendant proves that he is in possession of the suit property and let out the same to the tenant mohammed Salahia? ( 6 ) WHETHER the defendant proves that the contact has been terminated? ( 7 ) IS the plaintiff entitled to the relief of specific performance and permanent injunction sought for? ( 8 ) WHAT decree or order?additional Issues : 1. Whether defendant proves that this suit is barred by limitation? 2. Whether the plaintiff proves that obtaining of possession certificate from the CITB (BDA) in respect of margin land described in the suit schedule by the defendant was must to get sale deed as per the suit agreement to sale Deed dated 17. 12. 75 ? and they were answered as follows:"issue No. 1 - Affirmative issue No. 2 - Affirmative issue No. 3 - Affirmative issue No. 4 - Negative issue No. 5 - Negative issue No. 6 - Negative issue No. 7 - As per order issue No. 8 - part decree granted addl. Issue No. 1 - Negative addl. lssue No. 2 - Affirmative. "3. The defendant in this appeal has contended that the plaintiff has admitted that no record of evidence is there to show the payment of Rs. 18,000/- Rs. 5,000/- and Rs. 16,000/- on certain dates. The evidence of the plaintiff was contradictory to the pleadings. No receipt or acknowledgement is received by the plaintiff in respect of payment made by the defendant but states in evidence that as strangely the defendant has not produce it. There is no admission of payment or receipt thereof. The plaintiff was not ready and willing to discharge his obligations except mentioning 9 years after legal notice. No receipt or acknowledgement is received by the plaintiff in respect of payment made by the defendant but states in evidence that as strangely the defendant has not produce it. There is no admission of payment or receipt thereof. The plaintiff was not ready and willing to discharge his obligations except mentioning 9 years after legal notice. His intention was a sale legally executed. The time fixed was one month for discharge of obligations and agreements. When the period is fixed under the agreement time of 3 years will run for the date specified in the instant case is 17. 1. 76. The suit is therefore not in time and the plaintiff is not even alleged that the suit is in time under Sections 42 to 54 of the Limitation Act. The story of the tenant lease etc. , is concocted. The finding of the contract is continuous in crores is a wrong finding. On the other hand it is submitted by the plaintiff-appellant in his appeal that rejection of the margin land by the court below is improper. Simply because the respondent do not have sufficient subsisting interest on the margin land at the time of the agreement, it does not mean no decree can be passed. The defendant is bound by the Possession Certificate in respect of the margin land. It was mandatory on the part of the defendant to obtain the Possession Certificate in respect of Margin Land from the BDA. The dictum of Supreme Court reported in 1989 (3) SUPREME COURT cases 287 is not applicable to the facts of the case. 4. Heard the respective Counsel. 5. The points to be decided in this appeal are (1) whether the suit is barred by limitation ? (2) Whether the plaintiff is entitled for a decree for specific performance in respect of the marginal land also? (3) Whether the decree granted by the trial Court is sustainable? 6. It is not in dispute that agreement is dated 17. 12. 1975 and the suit is filed on 24. 7. 85 nearly 10 years after the agreement of sale. 7. In the cause of action there is no mention as to how the suit is in time by the plaintiff. Order 7 Rule 6 contemplates that whether the suit instituted is within limitation and to the exemption of the period prescribed by the law of limitation. 7. 85 nearly 10 years after the agreement of sale. 7. In the cause of action there is no mention as to how the suit is in time by the plaintiff. Order 7 Rule 6 contemplates that whether the suit instituted is within limitation and to the exemption of the period prescribed by the law of limitation. The plaintiff shall show the ground upon which exemption from such law is claimed. It is absolutely not mentioned as to the saving of limitation in the plaint and there is no compliance with Order 7 Rule 6, which is a mandatory provision. 8. It is submitted by Sri S. V. Raghavachar, appearing for the plaintiff (the party shall be referred to same rank in the suit for the purpose of convenience) that on 1. 6. 1976 a sum of Rs. 80,000/- was paid on 30. 5. 77 that is a rental karaar executed to it. The defendant was a witness. On 6. 7. 82 Rs. 5,000/- was paid. Even then according to Mr. Raghavachar though the suit was filed on 24. 7. 85 beyond three years from the date of last payment though notice was issued on 8. 6. 85, there was no reply. Therefore from 11. 6. 85 onwards the time has run and consequently the suit is not barred by time. Section 54 of the Limitation Act that applies to the filing of the suit for specific performance contemplates the time fixed for performance from the date of refusal. In this case the time fixed for performance is one month. So if time is to be counted from then, the suit is hopelessly barred by limitation. An argument was made payment will amount to acknowledgement within the meaning of section 19 of the Limitation Act. Therefore, the suit is in time. In my opinion mere payment will not extend the period of limitation in respect of a contract or sale, unless otherwise a specific averment is made in writing that time for performance is extended, in the absence of such extension in writing, limitation cannot be extended and it cannot be saved also. In this case admittedly even from the date of last payment namely, 6. 7. 82 the suit is filed on 24. 7. 85 beyond three years from the date of alleged last payment. In this case admittedly even from the date of last payment namely, 6. 7. 82 the suit is filed on 24. 7. 85 beyond three years from the date of alleged last payment. Therefore, even that ground is not available to the plaintiff to substantiate his claim and save himself from the onslaught of limitation. On this ground also the plaintiff must fail. ( 9 ) THE learned Counsel relied upon the various decisions to substantiate that the word "performance" in Article 54 has to be interpreted in different ways, then what is normaliy understood in common parlance. He relied upon the dictum in K. VENKOJ1 RAO vs M. ABDUL KHUDDUR KURESHI as follows: "where the time for execution of a sale-deed was extended up to certain fixed date but in view of the fact that a suit was filed by the first purchaser the sale-deed could not be executed, the time was again extended till disposal of suit filed by the first purchaser i. e, upto happening of certain subsequent event, the suit for specific performance of an agreement to sell, filed within three years from the decision in first suit dismissing it, would not be time barred, but would be within limitation. The meaning of the expression 'date fixed for the performance will have to be understood in a correct perspective. Though the word 'date' is used in Article 54 of Limitation Act it should not be taken that a particular date should be specifically stated in the agreement. In fact, even if the time of performance cannot be ascertained at the time of agreement itself, if it could be ascertained at the time of performance, it may be said to be a case where the date is fixed for the performance of the contract. For example, an agreement to execute a sale-deed after 'saguvali chit' is given can be construed as an agreement where date is fixed. Further, the date that can be fixed with reference to a future event which is certain to happen is the date on which such event takes place. For example, an agreement to execute a sale-deed after 'saguvali chit' is given can be construed as an agreement where date is fixed. Further, the date that can be fixed with reference to a future event which is certain to happen is the date on which such event takes place. It cannot be said that the suit was time-barred in view of section 9 of Limitation Act, inasmuch as the time for specific performance of agreement to sell was extended upto certain date and by the time it was again sought to be extended till the happening of subsequent event i. e. , the disposal of suit by first purchaser. " this may not apply to the facts of the case. There was the extension in writing of the time for purposes in that case. The Learned counsel relied upon the dictum of LAKSHMINARAYANA REDDIAR vs SINGARAVELU NAICKER AND ANOTHER as follows : the doctrine of imputing intention of the parties to a contract which may at times be at variance with the terms of a contract reduced to writing is a doctrine which has found acceptance of late with courts. This doctrine really rests upon the principle of construing an agreement with reference to the real situation or context in which it was entered into and not relying upon the mere wording of the contract as fixing the real intention of the parties. A cause of action arises for a party under a contract only when, as contemplated by the parties, the obligor is in a position to perform his promise effectively. Till such date no cause of action arises for the other party to compel him to file a suit for specific performance of the contract. The words of the third column in Article 113 of the Limitation act should not be literally construed but liberally construed having regard to the fact of each individual case. "the date fixed for the performance", which is the phrase occuring in the third column of Article 113, must be not only a date which can be identified without any doubt as a particular point of time, but it should also be a date which the parties intended should be the date when the contract could be performed. "the date fixed for the performance", which is the phrase occuring in the third column of Article 113, must be not only a date which can be identified without any doubt as a particular point of time, but it should also be a date which the parties intended should be the date when the contract could be performed. Once the cause of action is complete and effective, remedy is available for the party who relies upon the cause of action; suspension of the cause of action during any period after the cause of action had arisen can only be justified under the various exemptions specified in the sections of the Limitation Act. " even this decision will not apply, because there was an earlier sale in respect of the same property under a mortgage deed and till that sale is set aside the question of selling the property to third party do not arise. Only when the legal bar is removed then the right to sue accrues and consequently the limitation was sued in that case. Another Dictum K. SAMBASIVA RAO vs P. BANGARU raju relied on the following passage :"where under the agreement for sale of one acre of land out of a single plot of 13 acres, the plaintiff paid the entire sale consideration and the plaintiff within six months of the date of agreement was to identify one acre of land which he wanted to be conveyed to him in order to enable the defendant to execute the sale deed, it could not be said that because of the plaintiff's failure to perform his part of the obligation to identify one acre of land his claim for specific performance was vitiated since the plaintiff had been asking the defendant to perform his part of the contract and at no stage did the defendant raise any plea that his inability to perform the contract was because of the non- identification of one acre of land by the plaintiff. The objection that the plaintiff in his plaint stated that "he was willing" instead of that "he is ready and willing" to perform his part of the contract is too technical especially when the plaintiff in his examination-in-chief stated that "he is ready and willing " to perform the contract and therefore the averment in the plaint would not have the effect of the plaintiff's claim for specific performance of the agreement being hit by the provisions of Section 16 (c ). "here again there was no time fixed for performance of the contract. Another dictum BHAGWAN SINGH vs TEJA SINGH ALIAS teja RAM relied on the following passage:"article 54 of the Limitation Act provides period of limitation to be three years from the date fixed for the performance or, if no such date is fixed when the plaintiff has notice that performance is refused. Thus, the period of limitation is three years of the accrual of cause of action. The cause in this case would have accrued to the plaintiff on the defendant obtaining sale certificate and permission, if any, from the State Government. If this had been done before August 15, 1976 and the plaintiff intimated thereof, it could be safely said that the plaintiff. was liable to get the sale deed completed on or before August 15, 1976, but that is not so, the defendant having not obtained the sale certificate before the date fixed and in the absence thereof it could not be ascertained, whether there was a restriction placed on his right to sell the suit property and upto what time and if there was a restriction, he had not obtained permission from the state Government to transfer the property in favour of the third party, the plaintiff in this case. In the situation like this, the sale could be completed after the defendant had obtained permission and if this had happened, after August 15, 1976 obviously the period of limitation for completion of sate under the agreement would commence from the date the plaintiff had knowledge of permission having been obtained or that the defendant had a right to transfer the property after the expiry of period of restriction. In the facts of this case, it is clear that the defendant had not obtained sale certificate till today and did not inform the plaintiff that the latter had no legal obstacle in his way to execute the sale deed. Therefore, in the facts of this case, period of limitation could not be taken to have started with effect from August 15, 1976. The suit filed on July 22, 1981 will have to be held to be within limitation. "this again will not come to the aid of the petitioner because non-obtaining of the permission of the state will render any sale invalid in that case. Such is not the position in the present case on hand MRS. CHANDNEE WIDYAWATI MADDEN vs DR. C. L. KATIAL and OTHERS relied on the following passage :"plaintiffs entered with a contract of sale of a house belonging to the defendant on the plot granted by the Government. One of the terms of the contract was that the vendor shall obtain necessary permission of the Government for the sale within two months of the agreement and if the permission was not forthcoming within that time, it was open to the vendees to extend the date or to treat the agreement as cancelled. The vendor made an application for permission but for the reasons of her own, withdrew the same. In the suit filed by the vendees for specific performance of the contract or in the alternative for damages it was found that the vendees were always willing and ready to perform their part of the contract, that it was the vendor who willfully refused to perform her part of contract and that the time was not of the essence of the contract. Held that the contract was not a contingent contract and that the parties had agreed to bind themselves by the terms of the document executed between them. The court had got to enforce the terms of the contract and to enjoin upon the vendor to make the necessary application for permission. In the event of the permission being refused the vendees shall be entitled to the damages. "on the face of it, it does not apply to the case in this appeal. The court had got to enforce the terms of the contract and to enjoin upon the vendor to make the necessary application for permission. In the event of the permission being refused the vendees shall be entitled to the damages. "on the face of it, it does not apply to the case in this appeal. Finally relied on ROJASARA RAMJIBHAI DAHYABHHAI vs JANI narottamdas LALLUBHAI (dead by LRs.) AND ANOTHER for the following proposition : -"that the respondents were entitled for the decree of specific performance of contract. The allegation that the appellant had a imperfect title is without any basis whatever. With the extinction of the title of "rs" and the conferral of the rights of an occupant on the appellant under the Saurashtra Land Reforms Act, 1951, the property became transferable by him. It cannot, thereafter, be said that the contract between the parties, the appellant and the respondents, was a contingent contract, the performance of which was dependent upon fulfillment of the condition under the earlier agreement by which the appellant's vendor "rs" had undertaken upon himself the obligation of procuring the necessary sanction from the Colllector. As such occupant, it is undisputed that the appellant made an application to the revenue authorities permitting the conversion of the disputed land into village site. Thereafter, there was no legal impediment in the way of the appellant in executing a sale deed. "that margin land can be sold and it is not the contingent contract. ( 10 ) THE learned Counsel also relied upon my judgment in R. S. A. No. 366/1992 disposed of on 2. 7. 98 for the proposition that the Limitation Act cannot stand in the way of getting a decree for specific performance, when there is a delay of converting a land into non-agricultural use. But non-conversion of the land under the land Reforms Act in this state make the very sale invalid. Therefore, that decision is not applicable to the facts of this case. But non-conversion of the land under the land Reforms Act in this state make the very sale invalid. Therefore, that decision is not applicable to the facts of this case. ( 11 ) THOSE are all cases wherein the performance depend upon such conditions which went to the root of the matter, whereas in the present case the contingency of get a sale deed from the B. D. A. or getting the possession from the defendant or the tenant or getting a possession certificate is not a contingency that can debar the plaintiff to coming forward with the suit for specific performance. In any event, what the plaintiff was doing from 1975 to 1978 in not moving his little finger for this purposes is not explained. The mere payment spread over for a period of 7 years will not ipsofacto follow that the. plaintiff was really willing. Therefore, the question of limitation has to be held against the plaintiff and the suit must fail on that ground alone. Though several issues are framed by the trial Court and dealt with in detail by the trial Court. I very much constrained with additional issue No. 1 namely limitation which is now answered as above against the plaintiff. Now, that I held that the plaintiff is not entitled to any relief, the question of getting the marginal land does not arise. Even otherwise, the trial Court has dealt with the matter. However, it is found that the possession Certificate has not been given for the marginal land and there is no sale deed also. But getting a sale deed later is an act permitted by the B. D. A. and notwithstanding the proviso of alienation, the sale could be performed in the light of the ruling of this Court that such condition restraining alienation by the bda is bad in law. ( 12 ) ON the question of readiness and willingness, the trial Court has recorded a finding on issue No. 1 that the plaintiff is ready and willing. The trial Court mainly relied upon the various decisions and extracting the clause in the agreement Ex. P1 that the defendant is liable to make good dimension offered by the plaintiff. ( 12 ) ON the question of readiness and willingness, the trial Court has recorded a finding on issue No. 1 that the plaintiff is ready and willing. The trial Court mainly relied upon the various decisions and extracting the clause in the agreement Ex. P1 that the defendant is liable to make good dimension offered by the plaintiff. The trial Court has found that the defendant was not paid the lay-out charges and obtained the possession Certificate in respect of the suit property 1880 INDIAN LAW REPORTS 2000 KARNATAKA SERIES including the marginal land. The defendant failing to pay the lay-out charges cannot be construed to mean that the plaintiff is ready and willing. Once the plaintiff become interested in the property he should also take interest to approach the B. D. A and find out the reason for the delay and try to remove impediment, if any, in getting the sale deed and possession Certificate. No single move has been done by the plaintiff in that regard and this aspect has not been considered by the Court below at all. Therefore, answering all the points against the plaintiff, the appeal by the intended vendor is allowed. ( 13 ) THE appeal RFA No. 766/95 is allowed and RFA No. 768/95 stands dismissed and the suit is dismissed with costs. --- *** --- .