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2010 DIGILAW 438 (ALL)

Anjuman (D) through L. Rs. v. Shabbir

2010-02-02

RAKESH TIWARI

body2010
Rakesh Tiwari, J.: - The case is taken up in the revised list. None has appeared on behalf of defendant respondent. Heard Sri M.A. Qadeer, learned counsel for the plaintiff appellant and perused the record. 2. This second appeal arises out against the judgment and decree dated 9.5.1984 passed by the Civil Judge, Saharanpur in Regular Civil Appeal No. 118 of 1982 arising out of Original Suit No. 5 of 1981, Sabbir Ahmad versus Mohd. Anwar and another. 3. The second appeal was admitted on the substantial question of law as to whether the findings of the lower appellate Court that the suit was barred by time was erroneous? 4. The facts as culled out from the record are that the defendant respondent executed an agreement dated 31.7.1975 for sale of property which was described in schedule 'A' of the plaint for a consideration of Rs.6,000/- for which he had also received an advance of Rs.1,000/-.The agreement provided that Sri Sabbir, defendant respondent will seek permission for sale of the said property from the District Magistrate, Saharanpur/Ceiling Authority and will accordingly, inform the plaintiff appellant within 15 days about having received the permission. Thereafter within 15 days from the aforesaid information having been received Smt. Anjuman wife of Anwar, the plaintiff appellant will get the sale-deed executed from the Registration department. It further provided that if defendant appellant fails to comply with the conditions of the agreement to sell, Smt. Anjuman will have right to get the sale-deed executed through the Court. The defendant respondent instead of getting permission to sell from the District Magistrate, prolonged the execution of sale-deed on one pretext or the other. 5. It appears that the property in suit fell down in the year 1978 and was reconstructed by the plaintiff appellant with the consent of the defendant respondent after getting the map sanctioned from the Nagar Palika. 6. When defendant respondent was still dilly dallying in executing the sale-deed, the plaintiff appellant Smt. Anjuman filed original suit no. 5 of 1981, Smt. Anjuman versus Sri Sabbir which was decreed by the trial Court vide its order and judgment dated 8.3.1982. 7. Aggrieved by the aforesaid judgment and decree dated 8.3.1982, the defendant respondent filed Civil Appeal No. 118 of 1981. 5 of 1981, Smt. Anjuman versus Sri Sabbir which was decreed by the trial Court vide its order and judgment dated 8.3.1982. 7. Aggrieved by the aforesaid judgment and decree dated 8.3.1982, the defendant respondent filed Civil Appeal No. 118 of 1981. The first Appellate Court vide its order and judgment dated 9.5.1984 allowed the appeal with costs by setting aside the order and judgment of the trial Court on a finding that the suit was filed beyond limitation. It is in the aforesaid backdrop substantial question of law on question of limitation has been framed in the second appeal. 8. The only ground of challenge in this appeal pressed by the counsel for the appellant is that the finding recorded by the first appellate Court that the suit filed by the plaintiff appellant was barred by limitation is erroneous and that the findings in this regard recorded by the trial Court have been ignored by the lower Appellate Court. 9. The contention of learned counsel for the plaintiff appellant is that it was proved from the evidence on record in support of the pleadings in the plaint that defendant respondent had been giving assurances for executing the sale-deed and simultaneously he was also encouraging the appellant to spend money by raising constructions and make improvement on the property in dispute. In this manner, he kept the appellant in dark and thereafter he finally refused to execute the sale-deed sometime in October, 1980. Further contention of learned counsel for the appellant is that the suit was within time from the date of its institution as earlier the defendant respondent had not refused to execute the sale-deed, rather he had been encouraging the plaintiff appellant to invest money for raising construction for which he had also received an advance of Rs.1,000/-. 10. It is lastly submitted by the learned counsel for the appellant that it was one of the terms and conditions of the agreement to sell that the defendant respondent will seek permission from the District Magistrate and will inform the plaintiff appellant regarding grant of permission for the purpose of transfer of the property by way of sale. 10. It is lastly submitted by the learned counsel for the appellant that it was one of the terms and conditions of the agreement to sell that the defendant respondent will seek permission from the District Magistrate and will inform the plaintiff appellant regarding grant of permission for the purpose of transfer of the property by way of sale. It is stated that in the facts and circumstances of this case the trial Court has committed an error apparent in law in holding that as no notice was given by the plaintiff appellant to defendant respondent as to why he was not executing the sale-deed, hence the suit was time barred from the date of agreement to sell had been entered into between the parties. 11. It appears from the record that after taking advance of Rs.1,000/- the defendant respondent executed agreement to sell dated 31.7.1975. He had not objected to raise construction by the plaintiff appellant, rather he had encouraged her to raise construction. This does not amount to refusal for giving rise to cause for filing the suit in October, 1980, the defendant respondent inadvertently refused to execute the sale-deed in pursuance of agreement dated 31.7.1975 giving rise to cause of action to the plaintiff appellant for filing the suit as such the suit was well within time. 12. For all these reasons, the substantial question of law involved in this appeal as to whether the finding of the lower appellate Court that the suit was barred by time is erroneous, is answered in affirmative. 13. The appeal is accordingly allowed and the order and judgment of the lower appellate Court are set aside and that of the trial Court is affirmed. No order as to costs.