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2012 DIGILAW 1172 (AP)

Sangam Anantharavamma v. Peesapati Amaravathanulu

2012-11-26

SAMUDRALA GOVINDARAJULU

body2012
Judgment The defendants are the appellants. They are legal heirs of one Pedda Hanumareddy, who obtained Ex.B1 agreement for sale dated 05.06.1977 from the plaintiff in respect of the plaint schedule land. The rate of land was fixed at Rs.5,515/-per acre and total sale consideration was arrived at Rs.19,302.60ps. On the date of agreement, Hanumareddy paid earnest money or advance sale consideration of Rs.8,000/-to the plaintiff, undertaking to pay balance of consideration with interest at 12% per annum by 04.06.1978. On 22.06.1977, Hanumareddy paid another sum of Rs.2000/-under Ex.B3 endorsement on the back of the agreement. Subsequent to the due date of 04.06.1978, Hanumareddy paid another sum of Rs.1,000/-on 11.07.1978 under Ex.B2 endorsement on the back of the agreement. It is alleged that since Hanumareddy did not come forward for obtaining the registered sale deed after paying balance of sale consideration, the plaintiff got issued Ex.A1 notice dated 03.08.1983 to Hanumareddy stipulating that time is essence of the suit contract and calling upon Hanumareddy to pay balance of sale consideration within 15 days of receipt of notice and obtain registered sale deed. After receiving Ex.A1 notice, Hanumareddy got issued Ex.A2 reply notice dated 27.09.1983 throwing blame on the plaintiff for not performing terms of the suit contract, inasmuch as the plaintiff failed to obtain registered sale deed for the land from his brother and the plaintiff failed to get the land measured to arrive at the total consideration payable under the suit contract. After waiting for some time, the plaintiff got issued Ex.A3 notice dated 05.01.1985 to Hanumareddy canceling the suit contract. Again the plaintiff got issued Ex.A4 notice to the defendants after death of Hanumareddy on 20.12.1985. Exs.A5 to A7 are the returned covers therefor. In those circumstances, the plaintiff filed the suit for recovery of possession of the plaint schedule property and for mesne profits. The trial Court, after trial, dismissed the suit as barred by limitation under Article 59 of Schedule to Limitation Act 1963. On appeal by the plaintiff, the lower appellate Court allowed the appeal and decreed the suit for possession and relegated enquiry into mesne profits to another stage. Questioning the same, the defendants filed this appeal. The trial Court, after trial, dismissed the suit as barred by limitation under Article 59 of Schedule to Limitation Act 1963. On appeal by the plaintiff, the lower appellate Court allowed the appeal and decreed the suit for possession and relegated enquiry into mesne profits to another stage. Questioning the same, the defendants filed this appeal. It is contended by the appellants’ counsel that the suit is barred by time, inasmuch as time for filing the suit for possession starts from 04.06.1978, which is the date stipulated in Ex.B1 agreement for performance of the contract, and that the suit filed in the trial Court in the year 1992 is barred by limitation. It is further contended that the defendants are entitled to protect their possession under Section 53-A of the Transfer of Property Act. Originally, the plaint schedule land belongs to the plaintiff’s brother. The plaintiff obtained an earlier agreement for sale from his brother on 20.05.1977 for the suit property and subsequently, the plaintiff agreed to sell the same property to Hanumareddy under Ex.B1 agreement dated 05.06.1977. Though in Ex.B1 sale agreement, time for performance is stipulated as 04.06.1978, it was not adhered to. On the date of agreement, Hanumareddy paid advance of Rs.8,000/-out of the stipulated sale consideration of Rs.19,302.60ps. Again on 22.06.1977, Hanumareddy paid another sum of Rs.2000/-to the plaintiff within the stipulated date. Even after the stipulated date of 04.06.1978, Hanumareddy paid another sum of Rs.1,000/-to the plaintiff towards part of the sale consideration and it was received by the plaintiff and was endorsed on the back of the suit agreement as Ex.B2. There is no dispute that under Ex.B2 time for performance was neither extended nor refixed. In such a situation, as in the case of any contract for sale of immovable property, time is not essence of such a contract. In contract relating to immovable property, though time is not essence of such contract, it is open to both the parties to stipulate time as essence of the contract between them by giving notice to the other party intimating intention of that party that time is made essence of that contract relating to immovable property. In such a situation, time begins to run under Article 54 of Schedule to Limitation Act, 1963 from the date fixed in the notice for performance making time as essential for that contract. In such a situation, time begins to run under Article 54 of Schedule to Limitation Act, 1963 from the date fixed in the notice for performance making time as essential for that contract. In this case, the plaintiff issued notice dated 03.08.1983 to Hanumareddy stipulating time as essence of the suit contract and calling upon him to perform his part of the contract within 15 days of receipt of the said notice. After receiving the said notice, Hanumareddy gave Ex.A2 reply notice dated 27.09.1983 complaining that the plaintiff did not perform his part of the contract by way of obtaining registered sale deed for the suit land from his brother and getting the land measured for the purpose of final fixation of the sale consideration which was fixed at Rs.5,515/-per acre. Inspite of the said exchange of notices between the parties, neither of the parties to the suit contract approached any Court for specific performance of Ex.B1 agreement within three years of Ex.A1 notice or Ex.A2 reply notice. Therefore, it fallows that Hanumareddy’s right to obtain registered sale deed for the suit land in pursuance of Ex.B1 agreement stood extinguished. By Ex.A3 notice dated 05.01.1985, the plaintiff got issued consequential notice canceling the suit agreement. When the suit agreement Ex.B1 stood cancelled and when right of Hanumareddy to obtain registered sale deed in pursuance of Ex.B1 agreement stood extinguished, the defendants are not entitled to resist the present suit for possession filed by the plaintiff taking protection under Section 53-A of the Transfer of Property Act. In any event, there is no plea by the defendants in the written statement or in the proceedings in the lower Courts under Section 53-A of the Transfer of Property Act. In view of extension of the stipulated date in the suit agreement Ex.B1 by virtue of the plaintiff receiving part payment of Rs.1,000/-under Ex.B2 endorsement, it cannot be said that right of the plaintiff to seek possession of the schedule property starts from 04.06.1978. The said right to seek possession of the suit property accrued to the plaintiff only on the date of Ex.A3 consequential notice canceling the suit contract, or at best from 15 days of receipt of Ex.A1 notice dated 03.08.1983 whereby the plaintiff stipulated the condition that time is essence of the suit contract. The said right to seek possession of the suit property accrued to the plaintiff only on the date of Ex.A3 consequential notice canceling the suit contract, or at best from 15 days of receipt of Ex.A1 notice dated 03.08.1983 whereby the plaintiff stipulated the condition that time is essence of the suit contract. The suit filed in the trial Court on 04.11.1992 is well within the period of limitation in view of Article 66 of Schedule to the Limitation Act which prescribes period of limitation of 12 years for filing suit for possession of immovable property when the plaintiff became entitled for possession by reason of any forfeiture or breach of condition. This is not a suit for cancellation or setting aside an instrument or decree or for recision of Ex.B1 contract. Therefore, Article 59 of Schedule to the Limitation Act has no application to the present suit which is one framed for recovery of possession and consequential mesne profits for a period of three years prior to filing of the suit in the trial Court. In that view of the matter, the decision of the lower appellate Court is in accordance with the factual scenario and also the legal provisions attracting the said facts. I find no error or legal error in the decision of the lower appellate Court. In the result, the second appeal is dismissed with costs.