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2007 DIGILAW 1879 (PNJ)

Ranjit Singh v. Shakti Singh

2007-10-18

T.P.S.MANN

body2007
Judgment 1. The plaintiff, whose suit for confirmation of possession by way of specific performance of an agreement to sell, or, in the alternative, suit for the recovery of Rs. 20,000/-, was dismissed and his first appeal against the said judgment and decree dismissed, has filed the present second appeal. 2. The plaintiff had pleaded that on 4-3-1980, Karam Singh predecessor in interest of present respondents No. 1 to 4, entered into an agreement with him to sell his land measuring 37 kinals 19 marlas situated in village Dharampur to him. It was agreed that the sale-deed was to be executed by Karam Singh within 10 days of the decision by the Court in respect of the litigation which Karam Singh had with the Service Society, Dharampur, regarding the suit land. Further that, the sale was to be for a total consideration of Rs. 4,940/- out of which Rs. 2,000/- was received at the time of execution of the agreement to sell and the remaining amount to be paid at the time of execution and registration of the sale-deed. It was also stipulated that in case Karam Singh refused to execute the sale-deed in his favour, the plaintiff would be entitled to get the sale-deed executed through the Court of law and also to receive Rs. 2,000/- as damages along with earnest money. On the other hand, if the plaintiff failed to get the sale-deed executed, the earnest money paid by him would be forfeited. The plaintiff was put in possession of the land measuring 32 kanals 7 marlas out of the land agreed to be sold and the possession of the remaining land was to be given at the time of execution of the sale-deed. On 17-6-1980, Karam Singh, owner of the property, received another sum of Rs. l,000/- from the plaintiff and made an endorsement to the said effect on the back of the agreement to sell. However, a week before the filing of the present suit, the plaintiff came to know from the Halqa Patwari that the mutation of the suit land had been sanctioned in favour of Karam Singh. The plaintiff met Karam Singh to proceed ahead with the execution of the sale-deed but he put off the matter, hence suit for specific performance of agreement to sell dated 4-3-1980 of land measuring 37 kanals 19 marlas, or, in the alternative for recovery of Rs. The plaintiff met Karam Singh to proceed ahead with the execution of the sale-deed but he put off the matter, hence suit for specific performance of agreement to sell dated 4-3-1980 of land measuring 37 kanals 19 marlas, or, in the alternative for recovery of Rs. 20,000/- was filed. 3. Written statement was filed by present respondents No. 1 to 4 being the legal representatives of Karam Singh aforementioned. It was pleaded therein that deceased Karam Singh had been requesting the plaintiff time and again to perform his part of the contract on the decision of the Court in execution case, but he was never ready and willing to do the same. As such the earnest money was forfeited. Therefore, next of the heirs of Karam Singh were under no obligation to execute the sale-deed in favour of the plaintiff. 4. During the trial of the case, following issues were framed :- " 1. Whether deceased-defendant Karam Singh executed an agreement to sell dated 4-3-1980 in favour of the plaintiff? OPP. 2. Whether the plaintiff remained ready and willing and is still ready and willing to perform his part of the contract? OPP. 3. Whether the plaintiff is entitled to specific performance of the agreement dated 4-3-1980? OPP. 4. Whether the plaintiff is entitled to recover Rs. 20,000/- from the defendants in the alternative ? OPP. 5. Whether the suit of the plaintiff is within time ? OPP. 6. Whether the suit is not maintainable and defendants No. 2 and 3 are entitled to special costs? OPD No. 2 and 3. 7. Relief." 5. After perusing the evidence led by the parties, learned trial Court came to a conclusion that the plaintiff had failed to show his readiness and willingness to perform his part of the contract and therefore, not entitled to get the specific performance of the agreement to sell dated 4-3-1980. Further that the execution case titled "Dharampur Co-operative Agriculture Service Society, Dharampur v. Karam Singh" was dismissed as withdrawn as unsatisfied on 19-2-1983 and therefore, the period of 10 days for execution of the sale-deed was to be counted from the said order. In spite of the same, the plaintiff failed to show that he ever asked Karam Singh to perform his part of the contract. He was also not shown to be ready and willing to perform his part of the contract. In spite of the same, the plaintiff failed to show that he ever asked Karam Singh to perform his part of the contract. He was also not shown to be ready and willing to perform his part of the contract. He had not served any written or oral notice upon Karam Singh to get the sale-deed executed. Accordingly, Issues No. 1 to 3 were decided against the plaintiff. Issues No. 4 and 5 were also decided against the plaintiff. The appeal of the plaintiff was dismissed with costs by learned Additional District Judge, Hoshiarpur on 22-9-2004, who found no illegality or infirmity in the judgment under appeal. 6. I have heard learned counsel for the parties and perused both the judgments under appeal. 7. On 4-3-1980, when the agreement to sell was executed by Karam Singh to sell his land measuring 37 kanals 19 marlas, there was litigation going on between said Karam Singh and Dharmpur Co-operative Agriculture Service Society in respect of the land in question. Accordingly, it was agreed between the parties that the sale-deed was to be executed by Karam Singh within 10 days of the said decision. 8. The litigation of Karm Singh with the aforementioned Society culminated on 19-2-1983 when the counsel for the Society made the statement for not invoking the Jurisdiction of the civil Court for executing the award against Karam Singh. The execution was, thus, dismissed as withdrawn and unsatisfied. As the plaintiff was already aware of the pendency of the litigation between Karam Singh and the Society in question on the day when the agreement to sell was executed, he could not be heard saying that he did not know as to when the said litigation came to an end. As is clear from the above, the litigation of Karam Singh with the Society was over on 19-2-1983. The sale-deed was thus, required to be executed on or before 1-3-1983. In this period, the plaintiff took no steps either to request Karam Singh in person or serving any written notice upon him. He also did not go to the tehsil office to show that he was ready and willing to perform his part of the agreement. 9. The sale-deed was thus, required to be executed on or before 1-3-1983. In this period, the plaintiff took no steps either to request Karam Singh in person or serving any written notice upon him. He also did not go to the tehsil office to show that he was ready and willing to perform his part of the agreement. 9. Mere fact that the mutation of the property in question was sanctioned in favour of Karam Singh on 24-7-1995 and the suit had been filed on 11-12-1996, is no ground to grant the relief sought by the plaintiff-appellant as the parties had clearly agreed to go ahead with the execution of the sale-deed within 10 days of the decision by the Court in respect of the litigation between Karam Singh and the Society regarding the land in question. 10. The testimony of the plaintiff while appearing as P. W. 1 and that of his two witnesses, namely, Tarsem Lal-P.W. 2 and Gian Chand P.W. 3 have been held to be not sufficient by the learned lower Courts to show that he was always ready and willing to perform his part of the contract or had asked Karam Singh to do likewise. 11. Learned counsel for the appellant submitted that fixation of period within which contract was to be performed did not make stipulation of time as essence of contract. Even the default clause in the contract did not reflect the intention of the parties to make time as an essence of contract. In this regard learned counsel has relied upon Gomathinayagam Pillai v. Palaniswami Nadar, AIR 1967 SC 868. 12. Though in a case of specific performance, the Courts generally do not accept time to be the essence of contract, where it can be shown that parties never intended to do so. However, when it is clearly stipulated in the agreement to sell, as in the present case, that the sale-deed was to be executed within 10 days of the decision of the Court in respect of the litigation between Karam Singh and the Society, it would be extremely difficult to conclude that time was not the essence of contract this intention was evident from the clear stipulation made in the agreements to sell. 13. 13. In Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor, AIR 1999 SC 864, it was held that whether a finding of fact reached by the Court was against the weight of evidence or not is a question which would remain in the realm of appreciation of evidence and would not project any question of law, much less any substantial question of law, which could enable the High Court in second appeal to upset such a finding of fact. 14. As the sale-deed was to be executed on or before 1-3-1983 because the litigation between Karam Singh and the Society stood decided on 19-2-1983, the suit for specific performance was required to be filed within three years. However, the filing of the suit on 11-12-1996 was clearly barred by the law of limitation, as per Article 54 of the Limitation Act. 15. In view of the above, this court finds it extremely difficult to interfere in the findings of facts arrived at by the learned lower Courts and that too in a second appeal, where none of the substantial questions of law, as formulated by the appellant, arises for consideration. The appeal being without any merit, is hereby dismissed with no order as to costs.