Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 1576 (GAU)

NURUZZAMAN SK v. MONOWARA BEWA

2018-11-01

SUMAN SHYAM

body2018
JUDGMENT : SUMAN SHYAM, J. 1. Heard Mr. N. Dhar, learned counsel appearing for the appellants. Also heard Mr. S. Nath, learned counsel who had appeared in this case on behalf of the respondents. 2. This Second Appeal has been preferred against the concurrent judgment and decree dated 27.10.2006 passed by the Court of learned Civil Judge, Dhubri in Title Appeal No.27/2005 affirming the judgment and decree dated 12.07.2005 passed by the learned Civil Judge (Junior Division) No.1, Dhubri in Title Suit No.71/1999 whereby the counter-claim filed by the present appellants/defendants was dismissed on the ground that the same was barred by limitation. 3. The facts of the case, as projected through the pleadings, in a nutshell, are that the respondents as plaintiffs had instituted Title Suit No.71/1999 against the present appellants as defendants in the Court of learned Civil Judge (Junior Division) No.1, Dhubri inter-alia praying for a decree declaring their right, title and interest over the suit land and also for restoration of possession. The appellant Nos.1 and 2, who are the husband and wife, were impleaded as defendant Nos.1 and 2 respectively in the said Title Suit. 4. On receipt of summons, the appellants had appeared and filed their written statement-cum-counter-claim inter-alia stating that the predecessor in-interest of the plaintiffs had entered into an agreement with the defendant No.2 on 01.03.1988 for sale of land measuring 1 katha 15 lechas covered by Dag No.120 (Pt) of Khatian No.7 (new) under Mankachar Circle at village Hatsingimari in the District of Dhubri, described in Schedule-A to the plaint, pursuant whereto, the defendant No.2 was put in possession of the land on receipt of an amount of Rs. 7000/- from her by the seller. After getting possession of the Schedule-A land from the predecessor of the plaintiffs on 01.03.1988, the defendants had constructed dwelling house thereupon and have been possessing the land since 01.03.1988. However, at the time of signing the agreement for sale, no registered deed of sale could be executed on account of the fact that there was a ban imposed by the Government with regard to registration of sale deeds. The agreement for sale dated 01.03.1988 had, however, clearly mentioned that the predecessor of the plaintiffs, Nasimuddin Sk.(since deceased) or his heirs would be obliged to execute a registered sale deed as soon as the ban is removed by the Government. The agreement for sale dated 01.03.1988 had, however, clearly mentioned that the predecessor of the plaintiffs, Nasimuddin Sk.(since deceased) or his heirs would be obliged to execute a registered sale deed as soon as the ban is removed by the Government. After the removal of the ban, requests were made by the appellants/defendants for execution of the sale deed but instead of doing so, the plaintiffs started creating disturbance with regard to the peaceful possession of the Schedule-A land as a result of which, a proceeding under section 145 Cr.P.C. had to be initiated whereby the learned Magistrate had declared the possession of the land in favour of the defendants. However, on 28.04.1997 the plaintiffs had conveyed their intention not to execute the sale deed on the basis of the agreement dated 01.03.1988. The plaintiffs had thereafter filed Title Suit No.71/1999. Hence, the counter-claim had been filed by the appellants/defendants with a prayer to issue a decree directing the plaintiffs to execute a registered deed of sale in favour of the appellant/defendant No.2 with regard to Schedule-A land and for other consequential relief. 5. It appears from the record that the appellant/defendant No.2 had also purchased another plot of land measuring 2 Katha 10 Lechas from Late Nasim Uddin Sk. by means of registered deed of sale which is described in Schedule-B, to the written statement. However, since the controversy in this case relates only to the Schedule-A land, hence, no further reference to the Schedule-B land is called for in this case. 6. It appears that during the pendency of the proceeding, the plaintiffs had withdrawn the suit, but on the request of the appellants/defendants the learned trial Court had proceeded with the counterclaim. 7. As many as three issues were initially framed by the learned trial Court for trial of the counterclaim but subsequently two more additional issues were framed. The five issues framed by the learned court below are reproduced herein below for ready reference :- "(1) Whether the counter-claim is maintainable? (2) Whether the defendants are entitled to any decree as prayed for in the counter claim? (3) To what relief, if any, the defendants are entitled by their counter-claim? The five issues framed by the learned court below are reproduced herein below for ready reference :- "(1) Whether the counter-claim is maintainable? (2) Whether the defendants are entitled to any decree as prayed for in the counter claim? (3) To what relief, if any, the defendants are entitled by their counter-claim? ADDITIONAL ISSUES : (4) Whether the predecessor of the plaintiffs executed any deed of agreement in favour of the defendant No.2 for sale of Schedule-A land and delivered possession of the same in favour of the defendant No.2? (5) Whether the counter-claim is barred by limitation?" 8. The defendants side had led evidence in support of their counter-claim. Although the plaintiffs did not adduce any evidence, yet, they had cross-examined the witnesses of the defendants/counterclaimants (DWs). Upon examination of the evidence on record, the learned trial Court had decided the Additional Issue No.4 in favour of the defendants. However, while dealing with the Additional Issue No.5, the learned court below had observed that the counter-claim of the defendants was barred by limitation since the defendants had failed to demand registration of the sale deed in the year 1995. Consequently, the counter-claim filed by the appellants came to be dismissed by the learned trial Court by the judgment and decree dated 11.07.2005. 9. Aggrieved by the aforesaid decree passed in Title Suit No.71/1999 the appellants had preferred Title Appeal No.27/2005 before the Court of learned Civil Judge, Dhubri, which was also dismissed by the learned Lower Appellate Court by judgment and decree dated 27.10.2006. Hence, this Second Appeal. 10. This appeal was admitted for being heard on the following substantial questions of law :- "1. Whether the counter-claim in a suit praying for specific performance of contract would be barred after 3(three) years even though no time or date is mentioned in his agreement? 2. Whether the impugned judgment and decree would be sustainable in law in view of the erroneous finding arrived at by the learned Court below on total misreading of the provisions of the Limitation Act? 3. Whether the perverse finding on the basis of erroneous interpretation of law would render the claim of the appellants time barred?" 11. Mr. 2. Whether the impugned judgment and decree would be sustainable in law in view of the erroneous finding arrived at by the learned Court below on total misreading of the provisions of the Limitation Act? 3. Whether the perverse finding on the basis of erroneous interpretation of law would render the claim of the appellants time barred?" 11. Mr. Dhar, learned counsel for the appellants, submits that the conclusion reached by the learned trial Court with regard to Additional Issue No.5 is wholly perverse in as much as in the present case there was no timeframe for performance of the agreement for sale dated 01.03.1988. He submits that Article 54 of the Limitation Act, 1963 would be applicable in this case according to which, the period of limitation would be three years with effect from the date on which the plaintiff has noticed that performance is refused. In the present case, since the defendants had filed counter-claim, they would step into the shoes of the plaintiffs for the purpose of the counter-claim. In such view of the matter, submits Mr. Dhar, since the plaintiffs have refused to perform the agreement for sale on 28.04.1997, hence, the counter-claim having been filed on 17.08.1999, cannot be said to be barred under the law of limitation. 12. Mr. Nath, learned counsel for the respondents, on the other hand, submits that the appellants have failed to prove that the counter-claim was filed within the period of limitation. 13. As noted above, the counter-claim of the appellants/defendants was rejected as being barred under the Law of Limitation. Consequently, other issues were not decided by the learned Court below on merit. Although the learned Lower Appellate Court has affirmed the judgment and decree of the learned trial court but I find from the record that no point for determination was formulated by the learned Lower Appellate Court while hearing the appeal. The learned Lower Appellate Court had observed that the ban with regard to execution of registered deed of sale was lifted on 21.01.1995 and there is no evidence led by the appellants to show that on that date any demand was made by them for registration of a sale deed in respect of the Schedule-A land in favour of the defendant No.2. Since there was no explanation as to why the defendants did not insist upon Nasim Uddin Sk. Since there was no explanation as to why the defendants did not insist upon Nasim Uddin Sk. to execute a registered sale deed in respect of the suit land in the year 1995, the counter-claim was held to be barred under the Law of Limitation as prescribed by Article 54 of the Limitation Act, 1963. 14. A perusal of the LCR goes to show that the appellants had filed the counter-claim on 17.08.1999. In the said counter-claim, it has been categorically mentioned that the plaintiffs had refused to execute the registered deed of sale on 28.04.1997 but the said averment made in the counterclaim has not been denied by the plaintiffs in their written statement. It would be significant to note herein that the plaintiffs have not even raised the plea of limitation in the written statement. 15. Article 54 of the Limitation Act has two parts. According to the said Article, a suit for specific performance of a contract can be brought within a period of three years from the date fixed for its performance. However, if no such date is fixed then within a period of three years from the date on which the plaintiff has noticed that performance is refused. 16. As noted above, in the present case there was no fixed date for performance of the contract. Therefore, it is apparent that the second part of Article 54 would be applicable in this case. It appears that the learned Lower Appellate Court had proceeded on the basis that the period of limitation would run from 21.01.1995 i.e. the date on which the ban on registration of sale deeds was lifted by the Government. However, having regard to the contents of the agreement dated 01.03.1988, viewed in the light of the language employed in Article 54 of the Limitation Act, I am of the view that such an interpretation would not be in accordance with law. In other words, the period of limitation in this case ought to have been counted from the date on which the plaintiffs i.e. the defendants herein had noticed that performance of the contract was refused. The said date had been categorically mentioned in the written statement as 28.04.1997 and as noted above, the said statement has not been contested by the plaintiffs. The said date had been categorically mentioned in the written statement as 28.04.1997 and as noted above, the said statement has not been contested by the plaintiffs. Therefore, in the absence of any finding of fact to the contrary, the learned court below, in the opinion of this Court, was not correct in concluding that the counter-claim was barred under the law of limitation in the facts and circumstances of he case. 17. For the reasons stated above, the judgment and decree passed by the learned Lower Appellate Court is held to be unsustainable in law and is accordingly set aside. However, considering the fact that the other issues on the merit of the counter-claim have not been decided by the learned Lower Appellate Court, I am of the view that the present is a fit case where the appeals requires to be remanded back to the Lower Appellate Court for a decision on all the issues framed in the counterclaim on merit based on the evidence available on record. Ordered accordingly. Registry to send back the LCR as expeditiously as possible. Upon receipt of the LCR, the learned Lower Appellate Court may proceed with the matter and decide the Title Appeal afresh on merits. Facilitating the above process, the parties to appear before the learned Lower Appellate Court on 10.12.2018 along with a certified copy of this order. The Second Appeal stands allowed to the extent indicated above. No order as to cost.