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Karnataka High Court · body

2007 DIGILAW 561 (KAR)

M. Ponnuswamy v. M. Thamarai Kannan

2007-09-03

SUBHASH B.ADI

body2007
JUDGMENT Subhash B. Adi, J. This is 1st defendant’s appeal against the judgment and decree dated 14-10-2004 in O.S. No. 15171 of 2000. 1st respondent is the plaintiff. 2nd respondent is defendant 2. 2. Suit is one for specific performance of the contract by executing the sale deed in favour of the plaintiff in respect of suit site bearing No. 78 in Sy. No. 106 of Kodihalli Village, H.A Sanitary Board, Varthur Hobli Bangalore South Taluk and No. K formed out in Southern portion of Sy. No. 105/A of Kodihalli Village, Varthur Hobli, Bangalore South Taluk. 3. Case of the plaintiff is that, 1st defendant entered into an agreement of sale dated 10-9-1980 in respect of suit schedule property for consideration of Rs. 15,000/- and advance amount of Rs. 5,000/- was paid on the date of agreement and balance of Rs. 10,000/- was agreed to be paid in installments of Rs. 1,000/- every month till 15-7-1981. Plaintiff paid all the amount as agreed. On receipt of final payment of sale consideration, the 1st defendant delivered vacant possession of the suit schedule property to the plaintiff and 2nd defendant. The 2nd defendant was one of the agreement holder along with the plaintiff, but he abandoned his rights. Plaintiff constructed the house over the suit schedule property by investing Rs. 45,000/-. The construction was completed in the year 1983. However, 1st defendant being lineal descendent of plaintiffs mother Smt. A.L. Rajammal who was living with the plaintiff used to visit the suit schedule property and the mother died on 28-4-1999. At the time of demise of the plaintiffs mother, defendant 1 was in occupation of the suit schedule property with the plaintiffs mother as a licensee. He promised to vacate and redeliver the suit schedule property to the plaintiff. The plaintiff was always ready and willing to perform his part of the contract. The defendant did not perform his part of the contract. Further there was a ban of sale till 1998. The cause of action accrued to him when the defendant 1 refused to redeliver the possession of the suit schedule property. On these averments, the plaintiff sought for decree for specific performance. 4. 1st defendant contested the suit by filing written statement inter alia denying the allegations made in the plaint and alleged that, the last installment was to be paid on 15-7-1981. On these averments, the plaintiff sought for decree for specific performance. 4. 1st defendant contested the suit by filing written statement inter alia denying the allegations made in the plaint and alleged that, the last installment was to be paid on 15-7-1981. The cause of action for the plaintiff accrued in the year 1981 and the limitation commenced from July 1981 and the suit should have been file within three years i.e., by the end of 14-7-1984 and alleged that, the suit is barred by limitation. Defendant 1 also alleged that, plaintiff never called upon the defendant 1 for execution of the sale and plaintiff was never ready and willing to perform his part of contract. It is also alleged that, the suit is liable to be dismissed under Order 7, Rule 11 of the CPC, as suit being barred limitation, is not maintainable. It is also alleged that, the agreement was in favour of plaintiff and defendant 2 and defendant 2 having not filed the suit, the plaintiff alone cannot maintain the suit and suit is required to be dismissed on the said ground also. Further, it is alleged that the suit filed after nearly 16 years from the date of agreement and the said suit is liable to be dismissed not only on the ground of delay, but also on the ground of latches. 5. Defendant 2 though served, did not choose to file any written statement. 6. The Trial Court framed the following issues: (i) Whether the plaintiff proves that he entered into sale agreement with defendant 1 on 10-9-1980 pertaining to suit schedule property? (ii) Whether the plaintiff proves that he had paid entire sale consideration to defendant 1? (iii) Whether the plaintiff proves that there was breach of contract by defendant 1? (iv) Whether the plaintiff proves that he is willing and ready to perform his part of contract? (v) Whether the plaintiff is entitled for the delivery of vacant possession of suit schedule property? (vi) Whether the plaintiff is entitled for specific performance as sought for? (vii) Whether the plaintiff is entitled for mesne profits as sought for? (viii) Whether the suit is barred by limitation? (ix) What decree or order? 7. Plaintiff got himself examined as P.W. 1 and got marked Exs. P. 1 to P. 3. (vi) Whether the plaintiff is entitled for specific performance as sought for? (vii) Whether the plaintiff is entitled for mesne profits as sought for? (viii) Whether the suit is barred by limitation? (ix) What decree or order? 7. Plaintiff got himself examined as P.W. 1 and got marked Exs. P. 1 to P. 3. On the other hand, defendant 1 was examined as D.W. 1 and defendant 2 was examined as D.W. 2. 8. The Trial Court held that, the plaintiff has proved the agreement and proved payment of entire sale consideration and also breach of contract by the defendant 1, and held that the plaintiff is entitled for decree for specific performance and accordingly decreed the suit. 9. Sri Rajanna Shetty, learned Counsel for defendant 1-appellant submitted that, agreement is dated 10-9-1980 as per Ex. P. 1. Plaintiff had paid Rs. 5,000/- on the date of agreement and Rs. 1,000/- was agreed to be paid every month i.e., on or before 15th of every month till 15-7-1981. He relied on the clause in the agreement and submitted that, in case defendant 1 fails to register the sale deed after receiving Rs. 15,000/- on or before 15-7-1981, he will be liable to pay penalty of Rs. 30,000/-. Relying on the said clause in Ex. P. 1, he submitted that, in terms of agreement, the last payment was due on 15-7-1981 and on receiving the said amount, the sale deed was to be executed, the terms agreement shows that, the plaintiff got the cause of action on the date of last payment and the defendant 1 was to execute the sale deed on or before 15-7-1981, otherwise to pay Rs. 30,000/- as penalty to the plaintiff. Relying on Ex.P. 1 he further submitted that, the suit is filed nearly 19 years later i.e., on 7-2-2000. He submitted that, even before filing the suit, the plaintiff had not issued any notice, demanding execution of the sale deed. Further, submitted that, under Article 54 of the Limitation Act, 1963, the suit is required to be filed within three years from the date fixed for performance and if no date is fixed, then from the date of notice of refusal of performance. Relying on the said clause, learned Counsel submitted that, the suit is hopelessly barred by time. Further, submitted that, under Article 54 of the Limitation Act, 1963, the suit is required to be filed within three years from the date fixed for performance and if no date is fixed, then from the date of notice of refusal of performance. Relying on the said clause, learned Counsel submitted that, the suit is hopelessly barred by time. He further submitted that, the Trial Court over looking the provisions of Article 54 of the Limitation Act, has decreed the suit on the ground that, full sale consideration amount is paid. 10. As regards to the findings of the Trial Court on the question of limitation, learned Counsel further submitted that, the allegation made in the plaint that there was a prohibition to sell till 1998 is not proved. He submitted that, there was no such embargo to execute the sale deed nor the plaintiff has produced any material to show that, he was prevented from seeking enforcement of the agreement. In this regard he relied on paras 7 and 12 of the plaint wherein the plaintiff has stated that there was an embargo on the execution of the sale. He also relied on, evidence of P.W. 1 and submitted that, P.W. 1 except saying that there was an embargo, he has not produced any material in proof of the said allegation. In the absence of any material to show that there was an embargo or there was a bar imposed by the Government for execution of the sale deed, the Trial Court was not justified in giving a finding that the plaintiff was prevented from getting the sale deed on account of embargo. Placing reliance on the plaint averments and the evidence of P. W. 1, he submitted that, the plaintiff has not proved his case of embargo till 1998. 11. He further submitted that, even after 1998 also, the plaintiff had not issued any notice to defendant 1 calling upon him to execute the sale deed and the said delay is also not explained by the plaintiff He submitted that, grant of decree for specific performance being the discretionary, the plaintiff is not entitled for such a decree not only on the ground of limitation, but also in equity. 12. 12. He further submitted that, the plaintiff has not established his readiness and willingness to perform his part of contract, as he had not called upon the defendant 1 at any time to get the sale deed executed in his favour except stating in the plaint and submitted that, readiness and willingness is one of the requirement under Section 16(c) of the Specific Relief Act, 1963. He also submitted that, he had filed an application under Order 7, Rule 11 for dismissal of the suit and the said application was not disposed of by the Trial Court. 13. As regards to delivery of possession, the learned Counsel submitted that, the plaint averments clearly show that the plaintiff is not in possession of the suit schedule property, as the suit is itself for possession. He further relied on para 21 of the plaint and submitted that, the plaintiff has stated that the cause of action accrued to him on refusal of the 1st defendant to redeliver the vacant possession of the suit schedule property. Plaintiff not being in possession, he cannot claim part performance of the contract in terms of the provisions of Section 53-A of the Transfer of Property Act, 1882. 14. He further submitted that, agreement is in favour of plaintiff and defendant 2. Plaintiff alone has filed a suit. Defendant 2 has been examined as D.W. 2. Defendant 2 in his evidence has stated that, he has paid the sale conside!ation. In this regard he also relied on Ex.P. 2, the receipt, wherein it is mentioned that the receipt of amount is from plaintiff and defendant 2. Relying on evidence of D.W. 2, learned Counsel further submitted that, they had jointly agreed the purchase of suit schedule property and filing of the suit only by the plaintiff is not maintainable and the defendant 2 has also stated that, as per the advice of the family members, he is not interested in filing of the suit. 15. Learned Counsel for the appellant has filed an application under Order 41, Rule 27 of the CPC inter alia seeking leave of this Court to produce additional evidence and submitted that, the suit item 2 is not the property belonging to the defendant 1 and it belongs to one Yohan. 15. Learned Counsel for the appellant has filed an application under Order 41, Rule 27 of the CPC inter alia seeking leave of this Court to produce additional evidence and submitted that, the suit item 2 is not the property belonging to the defendant 1 and it belongs to one Yohan. He further submitted that, the agreement to execute the sale deed in respect of suit item 2 is misconceived as the defendant 1 being not the owner of the said property. He further submitted that, as on the date of filing of the suit, there was no cause of action for the plaintiff and defendant 1 has specifically denied the cause of action and also challenge the readiness and willingness of the plaintiff. The Trial Court over looking the evidence has decreed the suit. Further, submitted that, there is no part performance of the contract, as the original documents are with the defendant 1. Relying on Ex. P. 3 he submitted that, this document clearly shows that the originals are with the defendant 1. There is no part performance of the contract nor there is cause of action to seek decree for specific performance of the contract, nor the suit was well-within time and submitted that, Section 53-A is not applicable to the facts and circumstances of the case. 16. Sri Rego, learned Counsel appearing for the 1st defendant relying on Ex. P. 1-agreement of sale, submitted that, there is no dispute that the 1st defendant had entered into an agreement with the plaintiff on 10-9-1980. It is also not in dispute that, plaintiff paid Rs. 5,000/- on the date of agreement and the plaintiff paid Rs.1,000/- every month on or before 15th of the succeeding month and completed the payment in schedule time as required under the agreement i.e., before 15-7-1981. Plaintiff in terms of the agreement has performed his part of contract and there was nothing remaining for the plaintiff to perform. He submitted that, in part performance of the contract, Ex. P. 2 came to be executed. The last date of payment was on 14-7-1981. The defendant has admitted the receipt of full sale consideration and has also admitted the delivery of possession in favour of the plaintiff. Relying on Ex. P 2 he submitted that, plaintiff was put in possession in part performance of the contract. Plaintiff has paid the full sale consideration amount. The last date of payment was on 14-7-1981. The defendant has admitted the receipt of full sale consideration and has also admitted the delivery of possession in favour of the plaintiff. Relying on Ex. P 2 he submitted that, plaintiff was put in possession in part performance of the contract. Plaintiff has paid the full sale consideration amount. He relied on the plaint averments at para 12 and submitted that, there was embargo imposed by the State ‘Government in the matter of sale of the property and that embargo was existing till 1998. He further relied on the averments made in the plaint that, the plaintiff in furtherance of his part performance, invested Rs. 45,000/- and built a permanent structure on the suit schedule property. Relying on the plaint averments and the evidence of P.W. 1 and Exs.P. 1 and P. 2 he submitted that, plaintiff having been put in possession in furtherance of his contract and having constructed the structure on the suit schedule property and having paid the full sale consideration, is entitled for decree. 17. He further submitted that, defendant 1 being the brother of the plaintiff and the mother of the plaintiff was staying with the plaintiff and when she was not well, defendant 1 was used to visit and he occupied the suit schedule property and thereafter he did not vacate, and as such, plaintiff sought for redelivery of possession. He further submitted that, seeking redelivery of possession does not mean that, the plaintiff was not put in possession in part performance of the contract. In this regard he relied on the evidence of D.W. 2. In the cross-examination he has admitted that, defendant 1 is staying in the house built by the plaintiff. He further submitted that, defendant 1 has not disputed the agreement of sale, receipt of sale consideration and the part performance of the contract. He cannot now say that, the plaintiff had not performed his part of the contract. Readiness, willingness is not only specifically stated in the plaint and the documentary evidence such as Exs. P. 1 and P. 2 also establish the complete performance of contract by the plaintiff. In terms of Exs. P. 1 and P. 2 there remain nothing for the plaintiff to perform. It was only the defendant who is under obligation to execute the sale deed. His failure cannot be attributed to the plaintiff. 18. P. 1 and P. 2 also establish the complete performance of contract by the plaintiff. In terms of Exs. P. 1 and P. 2 there remain nothing for the plaintiff to perform. It was only the defendant who is under obligation to execute the sale deed. His failure cannot be attributed to the plaintiff. 18. Learned Counsel relied on paragraph 8 of the plaint and submitted that the plaintiff has specifically pleaded that second defendant has abandoned his claim and it is only the plaintiff, who contributed money and in part performance of the contract, constructed the residential building by spending Rs. 45,000/-. He submitted that, second defendant though served in the suit has not filed the written statement challenging the pleading. He relied on paragraphs 13 and 14 of the pleading, and submitted that, the plaintiff has specifically pleaded that the Government had imposed a ban on the sale of the land till the end of 1998. As regards to the entry of the defendant 1 in the suit schedule property, learned Counsel for the plaintiff relied on paras 15, 17 and 18 of the plaint and submitted that on account of the relationship between the parties, defendant 1 was allowed to visit plaintiffs house. Since the plaintiffs mother was residing with the plaintiff, defendant 1 taking advantage of the same, he occupied the schedule premises and on the demise of the plaintiffs mother on 28-4 1999, the defendant 1 did not vacate the suit schedule property. When he refused to vacate the property, plaintiff was constrained to file the suit and this is clear from the averments in para 21 of the plaint. Learned Counsel also relied on the pleadings in the written statement of the defendant 1 and submitted that the defendant 1 has not specifically denied the plaint averments and non-denial of averments in the plaint, it amounts to acceptance by the defendant 1. He further submitted that, as far as the plaintiffs case of embargo imposed by the Government till the end of 1988 is concerned, it is not specifically denied by the defendant 1. He further submitted that the defendant 1 now cannot turn round and submit that the plaintiff has not proved his case as regards to embargo. 19. Ex.P. 1 and the endorsement made on the Ex.P. 1 is a clear proof of the complete performance of the contract by the plaintiff. He further submitted that the defendant 1 now cannot turn round and submit that the plaintiff has not proved his case as regards to embargo. 19. Ex.P. 1 and the endorsement made on the Ex.P. 1 is a clear proof of the complete performance of the contract by the plaintiff. Ex.P. 2 is a proof of part performance of the contract by the defendant 1. Relying on these documents, learned Counsel submitted that, in terms of Section 53-A of the Transfer of Property Act, plaintiff having paid the full amount and having put in possession of the suit schedule property in part performance of the contract, nothing more is required to be proved by the plaintiff nor the plaintiff is required to prove his readiness and willingness and further submitted that the readiness and willingness will not assume any importance when the plaintiff was put in possession in part performance of the contract. 20. He relied on Article 54 of the Limitation Act and submitted that, the cause of action for filing the suit arises only when the plaintiff has the notice of refusal of performance by defendant 1 and submitted that the refusal of performance by defendant 1 was only in 1999 when the defendant 1 refused to vacate the suit schedule property and the suit is well-within time. He further submitted that, from Ex.P.3 it is clear that, based on the complaint, defendant 1 and his wife, they were called to the Police Station and defendant 1 and his wife admitted the original documents are in their possession. He submitted that, the fact that documents were collected by defendant 1 is admitted in the cross-examination of D.W.1. He further submitted that, when defendant 1 was in the plaintiffs house on account of the illness of his mother, the documents came in possession of the defendant 1. 21. As regards to the abandonment of the defendant 2 of his claim, learned Counsel submitted that, though defendant 2 is also a party to e agreement-Ex. P. 1, however, defendant 2 not joining with the plaintiff to file a suit does not debar the plaintiff to sue for specific performance of the contract. He submitted that he is entitled to sue for specific performance of the contract even in the absence of defendant 2. He submitted that, though defendant 2’s name is shown in Exs. P. 1, however, defendant 2 not joining with the plaintiff to file a suit does not debar the plaintiff to sue for specific performance of the contract. He submitted that he is entitled to sue for specific performance of the contract even in the absence of defendant 2. He submitted that, though defendant 2’s name is shown in Exs. P. 1 and 2, D.W. 2 has not shown his source of income for payment of monthly installments. He further submitted that, defendant 2 though he was made party has remained ex-parte and in order to support defendant 1 has entered the witness-box as D.W. 2 and he further submitted that’ defendant 2 not joining with the plaintiff is not fatal to the suit. In this regard, he relied on a decision in the matter of Jahar Roy (dead) by L.R s and Another Vs. Premji Bhimji Mansata and Another, AIR 1977 SC 2439 . Learned Counsel submitted that, a person cannot be prevented from bringing an action by any rule of law or practice, merely because he is a joint promisee and the other promisee refuse to join as a co-plaintiff. He submitted that, the proper course open to the plaintiff was to join as a defendant and submitted that perfectly in consonance with the law laid down by the Apex Court, the defendant 2 is made party in the suit. He submitted that the action brought by the plaintiff is perfectly in accordance with law and the law laid down by the Apex Court. 22. As regards to the contention of the appellant that the suit item 2 does not belong to the defendant 2 and the said property belongs to one Yohan and the defendant 1 cannot execute the sale deed in respect of the said property is concerned, learned Counsel submitted that Section 13 sub-section (1) of the Specific Relief Act does not preclude the plaintiff from bringing the suit. Even in case the vendor has imperfect title or no title, whatever title or interest that is vested in the vendor, that can be passed on to the vendee-the plaintiff. He further submitted that there is no dispute that the possessory rights are vested in defendant 1. It is also not in dispute that the defendant 1 has been in possession. He further submitted that there is no dispute that the possessory rights are vested in defendant 1. It is also not in dispute that the defendant 1 has been in possession. Apart from this, he submitted that, this is not the defense that is taken by the defendant in the written statement, except saying in the oral evidence, no material was produced. He submitted that even in such case also, the plaintiff is entitled for the decree against the defendant 1. He further submitted that, even assuming that the title is - imperfect or no title, the plaintiff can maintain a suit for specific performance of the contract against defendant 1, who is promisor. In this regard, he relied on a decision in the matter of C. V. Muni Samappa Vs. Kolala Gurunanjappa (dead) and Others, AIR 1950 Mad. 90 , and also in the matter of Mir Abdul Hakeem Khan Vs. Abdul Mannan Khadri, AIR 1972 AP 178 . By relying on these decisions, he submitted that the vendor cannot deny the execution of the sale deed by stating that the title is not vested in him or he has imperfect title, under Section 13(1) of the Specific Relief Act, he is bound to perform his part of contract and he cannot deny on the ground that he has no title or imperfect title. He submitted that Section 13(1) confers power on the vendee to seek the title as and when the vendor gets the title or perfects his title and it does not preclude from seeking enforcement of the contract to the extent the vendee’s right. 23. Apart from this, he seriously disputed the title of Yohan and the encumbrance certificate produced by defendant 1 along with application under Order 41, Rule 27 of the CPC and submitted that, the property referred to in the said encumbrance is not the suit item 2 property. The address shown in the said encumbrance certificates is not correct. 24. He further submitted that the delivery of vacant possession in favour of the plaintiff and the defendant 2 and the clause that requires that, whenever the plaintiff demands, the defendant 1 will execute the sale deed is concerned, he submitted that Ex. P. 2 is a complete proof of the sale transaction and it is the liability of the defendant 1 to execute the sale deed. P. 2 is a complete proof of the sale transaction and it is the liability of the defendant 1 to execute the sale deed. He further submitted that, any ambiguity in the document cannot be treated as fatal. The said documents cannot be treated as ambiguous and in this connection, he relied on a decision in the matter of the Godhra Electricity Company Limited and Another Vs. State of Gujarat and Another, AIR 1975 SC 32 : (1975) 1 SCC 199 and submitted that in case of any ambiguous instrument, there is no reason- why the subsequent interpretation of statement should not be admissible. The oral evidence to clear the doubts in the instrument can be led to prove the document. He submitted that though it is clear as to non-mention of the owner’s name and the name and the time does not render the Ex. P. 2 ineffective or inadmissible, in this regard, the plaintiff has led the oral evidence and proved the performance and also the time to complete the performance of the contract. 25. Insofar as the time for performance of the contract is concerned, learned Counsel submitted that, Ex. P. 1 requires the plaintiff to pay the sale consideration in a stipulated time i.e., 14-7-1981. Ex. P. 2 is a complete proof of the entire payment before the stipulated time. As far as plaintiff is concerned, he has performed his part of contract by paying the entire sale consideration amount. The subsequent development of embargo on the sale transaction by the Government and the conduct of the defendant 1 in collecting the documents refusing to execute the sale deed and further non-denial of the case of the plaintiff in the plaint by the defendant 1 is a clear proof that the defendant in furtherance of his contract has accepted that there is no stipulation of time to perform the contract. The plaintiff in exercise of his right well-within time has filed the suit immediately after the embargo was lifted by the State Government. In this regard, he relied on a decision in the matter of S. Brahmanand and Others Vs. The plaintiff in exercise of his right well-within time has filed the suit immediately after the embargo was lifted by the State Government. In this regard, he relied on a decision in the matter of S. Brahmanand and Others Vs. K.R. Muthugopal (dead) and Others, AIR 2006 SC 40 : (2005) 12 SCC 764 and submitted that subsequent request of the defendant for postponement of performance to the future date without fixing any further date for performance, the plaintiffs by their act of forbearance and not insisting on performance forthwith accepted and time for performance stands extended and its falls within Article 54 of the Limitation Act. He submitted that, plaint averment and the evidence of P.W. 1 coupled with the admission on the part of the defendant 2 in the cross-examination of the construction of residential building by the plaintiff are the clear evidence of the performance of contract and also the proof of the fact of readiness and willingness on the part of the plaintiff to have the sale deed. However, on account of the embargo imposed by the Government till the end of 1998, plaintiff was prevented from getting the sale deed registered in his name. 26. He further submitted that, even the alleged encumbrance certificate showing the name of Yohan in respect of item 2 cannot be taken on record. Further, even for the argument sake if it is accepted, this Court cannot decide the title of the third party in this suit nor the Court get the jurisdiction to go into the question of the third party’s title. In this regard, he relied on a decision in the matter of Kasturi Vs. Iyyamperumal and Others, AIR 2005 SC 2813 : (2005) 6 SCC 733 : 2005 AIR SCW 2368. On these submissions, learned Counsel for the plaintiff submitted that as far as plaintiff is concerned, not only he fulfilled all his obligations under the contract, but he invested money in the construction of the residential building. In such circumstances, the defendant 1 is under obligation to execute the sale deed. 27. In the light of the rival contentions, the points that arise for consideration in this appeal are: (1) Whether the suit is barred by limitation? (2) Whether the plaintiff was ready and willing to perform his part of contract? (3) Whether the suit item 2 belongs to the defendant 1? 27. In the light of the rival contentions, the points that arise for consideration in this appeal are: (1) Whether the suit is barred by limitation? (2) Whether the plaintiff was ready and willing to perform his part of contract? (3) Whether the suit item 2 belongs to the defendant 1? (4) Whether the Trial Court was justified in decreeing the suit? 28. Article 54 of the Limitation Act provides for limitation within which a suit is required to be brought, which reads as under: “Description of Period of Time from which period begins suit Limitation to run For specific 3 years The date fixed for the performance of a performance, or, if no such date contract is fixed, when the plaintiff has notice that performance is refused”. 29. Section has twofold, one is, if there is a date fixed in the contract, then that date would be the starting point of the limitation and within three years from the said date, the suit is required to be brought. In case, there is no date fixed, then it is the date on which the defendant 1 refuses to perform his part of contract. 30. The facts, which are not in dispute in this case are, the agreement is executed on 10-9-1980. Under the terms of the agreement plaintiff was required to pay Rs. 1,000/- every month on or before 15th and the entire sale consideration was to be paid on or before 15-7-1981. The payment of advance amount and the monthly amount as fixed under the agreement is also paid by the plaintiff. The relevant clause of Ex. P. 1 reads as under: “If the vendor fails to register the sale deed after receiving the amount of Rs. 15,000/- on or before 15-7-1981, the vendor has to pay Rs. 30,000/- as penalty to the purchasers”. Reading of this clause shows that, the vendor is required to register the sale deed after receiving the amount of Rs. 15,000/- on or before 15-7-1981. Fact that the vendor has received the amount on or before 15-7-1981 is clear from Ex. P. 2. As on that date, the vendor becomes liable to execute the registered sale deed. However, plaintiffs case is that, since there was an embargo to execute the sale deed till the end of 1998, he could not get the sale deed executed in his favour. P. 2. As on that date, the vendor becomes liable to execute the registered sale deed. However, plaintiffs case is that, since there was an embargo to execute the sale deed till the end of 1998, he could not get the sale deed executed in his favour. As regards to this contention, though the plaintiff has stated in his evidence and as well in the plaint, but the nature of embargo is not stated nor any document is produced by the plaintiff to show, as to how the plaintiff was prevented from getting the sale deed registered in his favour till 1998. According to the plaint averment, the cause of action accrued to the plaintiff in October 1999 i.e., when the first defendant refused to redeliver the possession. Para 21 of the plaint reads as under: “That the plaintiff is also constrained to bring the above suit, as the first defendant has refused to redeliver vacant possession of the schedule properties to the plaintiff herein. Hence the suit”. It is alleged that the defendant 1 had entered the premises on the ground that the plaintiffs mother was not well. It is alleged that the plaintiff’s mother died on 28-4-1999 and the defendant 1 refused to execute the sale deed. Though embargo is stated in the plaint, even according to the plaintiff, he did not choose to sue for specific performance of the contract nor he demanded the registration of the sale deed even after the alleged embargo was lifted. Article 54 of the Limitation Act provides that if the date is not fixed, then it is the date of refusal. Refusal requires demand by the plaintiff and if the demand is refused, that gives the cause of action. The plaint does not show as to when the demand was made by the plaintiff for registering the sale deed to his favour. If the plaintiff was waiting for the embargo to be lifted by the Government, the burden is on the plaintiff to show that there was embargo and it had prevented the plaintiff from seeking registration of the sale. In the absence of any evidence, relying on the averment made that the plaint, even if it is not specifically denied, it does not mean that the limitation gets extended in favour of the plaintiff. Ex. In the absence of any evidence, relying on the averment made that the plaint, even if it is not specifically denied, it does not mean that the limitation gets extended in favour of the plaintiff. Ex. P. 1 also stipulates that in the event defendant 1 fails to execute the sale deed before 15-7-1981, the plaintiff is entitled for penalty of Rs. 30,000/-, assuming that the penalty stipulated in the Ex. P. 1 is in addition to the execution of the sale deed, what prevented the plaintiff to sue the defendant 1 when he did not execute the sale deed before the date. 31. As far as readiness and willingess on the part of the plaintiff is concerned, since the plaintiff has paid the entire sale consideration to the defendant 1, there is nothing for the plaintiff to do anything in the contract. It does not require that the plaintiff to show his readiness, but the readiness and willingness is the mental attitude and the readiness to perform his contract. Though the sale consideration has been paid by the plaintiff, the plaintiff’s mental attitude to have the sale deed has to be put in action to show that his willingness was there right from the date of the agreement till the filing of the suit. Plaintiff having stated that he is ready and willing to perform his part of contract, has not led any evidence to show as to what steps he had taken to get the sale deed registered in his favour. The evidence of P.W.1 only shows that he was waiting for the embargo to be lifted by the State Government. Even taking into account the alleged embargo alleged to be there till the end of 1998, it is not known as to why he should wait till 2000 i.e., till the filing of the suit. If the embargo was lifted at the end 1998, the plaintiff should have invoked the jurisdiction of the Court for getting the sale deed registered. Unfortunately, the plaintiff not even demanded the registration of the sale deed in his favour immediately thereafter also. 32. As regards to part performance of the contract is concerned, no doubt, Ex.P.2 states that the plaintiff was put in possession of the suit schedule property. Unfortunately, the plaintiff not even demanded the registration of the sale deed in his favour immediately thereafter also. 32. As regards to part performance of the contract is concerned, no doubt, Ex.P.2 states that the plaintiff was put in possession of the suit schedule property. Part performance of the contract does not mean that the plaintiff is absolved from other obligations, part performance only protects the possession of the plaintiff, however, it requires that, the plaintiff should show his readiness and willing to perform his obligation. Even assuming that the entire payment is made and there is no obligation on the part of the plaintiff to perform, still the plaintiff cannot wait for 19 years to file the suit. In my view, Article 54 requires a demand by the plaintiff and in case of refusal, the plaintiff gets the cause of action to file the suit, even such demand cannot be made at unreasonable point of time. 33. In this case, what is required to be noticed is the relationship of the parties. Plaintiff and defendants are none other than the brothers. Plaintiffs admission that the defendant 1 was residing in the house is also one of the factors, which is required to be noticed. It is not known as to how the plaintiff has put the defendant 1 in possession of the suit schedule property. The explanation offered by the plaintiff in the evidence is that, defendant 1 was visiting the plaintiff’s house as the mother was not well, visiting the house does not amount to occupying the house. Para 21 of the plaint clearly shows that the defendant 1 refused to redeliver the possession, that means, it is the defendant 1 is in possession of the suit schedule property. Even assuming that the defendant 1 was visiting the plaintiff’s house, it is not known as to how the plaintiff was dispossessed from the suit scheduled property. Insofar as dispossession of the plaintiff is concerned, there is no material on record. However, D.W.2 in one sentence had admitted that, defendant 1 was residing in the house built by the plaintiff. But para 21 of the plaint clearly shows that, plaintiff is not in possession, in turn, it shows defendant 1 is in possession. Hence, theory of plaintiff was put in possession in performance of the contract cannot be accepted. 34. However, D.W.2 in one sentence had admitted that, defendant 1 was residing in the house built by the plaintiff. But para 21 of the plaint clearly shows that, plaintiff is not in possession, in turn, it shows defendant 1 is in possession. Hence, theory of plaintiff was put in possession in performance of the contract cannot be accepted. 34. As regards to the title to the item 2 is concerned, by way of additional evidence, the defendant 1 has produced the encumbrance certificate and also a sale deed inter alia, showing that item 2 property does not belong to the defendant 1. No doubt, the said document is disputed. However, fact remains that the title to the suit item 2 property is concerned, it is seriously disputed. As rightly submitted by the learned Counsel for the plaintiff that, even in case of imperfect title, the rights of the plaintiff are not vitiated and plaintiff’s right to sue against the defendants either without title or imperfect title is not taken away and plaintiff can very well-exercise that right. But the said question need not be gone into in this case unless the plaintiff establishes his right to maintain the suit. 35. Apart from the limitation, the second aspect of the matter is, the suit for specific performance is a discretionary relief, to be granted based on the facts and circumstances of the case. The fact that the plaintiff has not chosen to demand the registration of sale deed for 19 years, whether at this juncture, granting decree for specific performance is justified. Limitation is prescribed under Article 54 so as to make the parties to sue for specific performance well-within time or in a time when cause of action really accrues. Plaintiff having not chosen to exercise his right well-within time or even immediately after the alleged embargo is lifted and in view of the relationship of the plaintiff and the defendants, being that of the brothers and the defendant 1 being in possession of suit peroperty, coupled with the evidence of D.W.2, who is one of the party to the agreement, who in his evidence has stated that, in the interest of the family member, he did not file the suit. These circumstances do show that the plaintiff did not choose to file the suit immediately thereafter because of the relationship of the parties and the family interest might have been one of the circumstances, which had prevented the plaintiff from suing. Having not chosen to exercise his right for 19 years, in my view, the suit is barred by time as stipulated under Article 54 of the Limitation Act. Even undisputedly the plaintiff has not made demand for registration of the sale deed clearly shows that plaintiff did not choose to file a suit within limitation. The refusal to execute the sale deed gives right to the plaintiff for penalty of Rs. 30,000/-. 36. Even otherwise also, plaintiff admits that defendant 1 is in possession of the suit property, in such circumstances, in equity also plaintiff is not entitled for decree. Hence, the decisions relied by the learned Counsel for the plaintiff in support of his case as far as unjust enrichment or the defective title or part performance of the contrat may not be required to be gone into. 37. The Trial Court ‘in. decreeing the suit has heavily relied on the evidence of P.W. 1 in coming to the conclusion that the entire sale consideration having been paid, the plaintiff has performed his Part of the contract and there was an embargo to perform the contract is not disputed by the defendants. On these findings, the Trial Court has held that the suit is in time. But Article 54 stipulates the cause of action from the date of refusal. In this case, according to the plaintiff, the refusal is the date on which the defendant 1 refused to redeliver the possession. Redelivery of possession is not the cause of action, the cause of action was for demand of the execution of the sale deed or registration of the sale deed and that gives the cause of action. Not only there is no demand, but waiting for 19 years will not give any rights to the plaintiff to sue for specific performance. Hence the finding of the Trial Court on the question of limitation is per se contrary to Article 54 of the Limitation Act. In the circumstances, I find that the judgment and decree of the Trial Court is not sustainable in law. 38. However, the agreement-Ex. Hence the finding of the Trial Court on the question of limitation is per se contrary to Article 54 of the Limitation Act. In the circumstances, I find that the judgment and decree of the Trial Court is not sustainable in law. 38. However, the agreement-Ex. P. 1 is not disputed by the defendants and the receipt of the amount is also not disputed. Under the Ex. P. 1, the plaintiff is entitled for penalty of Rs. 30,000/- in the event the defendant fails to register the sale deed. In reading of Ex. P. 1, it requires that the plaintiff to demand the execution of the sale deed on or before 15th July, 1981 and refusal to grant, he will be entitled for Rs. 30,000/-. Taking the circumstances into account, I hold that the plaintiff, who has paid the entire amount, is entitled for refund of amount with penalty as stipulated under the Ex. P. 1 with interest at rate 9% per annum from 15-7-1981. 39. It is brought to my notice that, in response to the application under Order 41, Rule 27 filed by the defendant 1, the plaintiff has filed a memo along with two documents, viz., copy of the notice dated 25-10-1999 alleged to have been sent by registered post to the defendant 1 inter alia, demanding the sale of both the items of suit schedule property. Further alleging that plaintiff had arranged for a panchayat and in the said panchayat, a sale agreement, General Power of Attorney and affidavit were executed in his favour on 4-1-1999 by receiving another sum of Rs. 50,000/- and further alleged that thereafter also, defendant 1 has not come forward to execute the sale deed and alleged that instead of executing sale deed, the defendant 1 has filed a complaint alleging that the documents are stolen. He also produced the alleged reply dated 15-11-1999 wherein the defendant 1 has denied the execution of sale agreement dated 4-1-1999, GPA dated 4-1-19.99 all d affidavit dated 4-1-1999 in respect of suits ‘A’ and ‘B’ properties and defendant 1 has stated that, he is the owner of both the properties. 40. Though these documents are produced by way of additional evidence, however, for the purpose of the proper appreciation of the case the plaintiff, they are considered. 40. Though these documents are produced by way of additional evidence, however, for the purpose of the proper appreciation of the case the plaintiff, they are considered. From the notice dated 25-10-1999, it is clear that the plaintiff alleges that there is an agreement subsequently on 4-1-1999. This fact again establishes that the plaintiff is not seeking the enforcement of agreement dated 10-9-1980 and the 10-9-1980 agreement has been given go-by in view of the panchayat between the plaintiff, defendant 1 and it is alleged that, subsequently the plaintiff has paid Rs. 50,000/- and has got the agreement on 4-1-1999 and also got the affidavit and the General Power of Attorney. These documents further show that there has been subsequent development between the parties and plaintiff alleges that there is an agreement on 4-1-1999 in respect of the suit schedule property. Looking into these documents, it is clear that, plaintiff has sought for another agreement. It is left for the plaintiff to execute his right under the said documents. But having produced those documents, it fortifies that the 10-9-1980 agreement was got either modified or got substituted by subsequent agreement dated 4-1-1999 and interestingly there is no reference of any embargo by the Government to execute the sale deed, it only shows that the plaintiff wanted to have his right conferred by another agreement. Hence, I find that the Trial Court was not justified in decreeing the suit by not considering the limitation, delay, equity and the relationship of the parties. In my considered opinion, the judgment of the Trial Court is not sustainable in law. Accordingly, the appeal is allowed. The judgment and decree dated 14-10-2004 passed in O.S. No. 15171 of 2000 is set aside. If any other right is accrued to the plaintiff in pursuance of the alleged subsequent agreement produced along with memo, the plaintiff is at liberty to work out his remedy in accordance with law. No order as to the cost.