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2019 DIGILAW 1799 (HP)

Deep Ram v. Sohan Lal Sharma

2019-11-28

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. By way of this appeal, the appellant has prayed for setting aside of the judgment and decree passed by the Court of learned Civil Judge (Senior Division), Shimla, H.P. in Civil Suit No.107/1 of 2000/98, titled as Sohan Lal Sharma Versus Deep Ram, decided on 31.08.2005, vide which the suit filed by the present respondent was decreed by the learned Trial Court in the following terms:- “In the light of my findings on the foregoing issues, the suit of the plaintiff succeeds and is hereby decreed with costs. I hereby pass a decree for specific performance of agreement of sale in favour of the plaintiff and against the defendant. For the purpose of identification of the suit property the agreement Ext.PW1/A and copy of jamabandi Ext.DW1/A shall be the part of the decree. The defendant is mandated to execute the sale deed of the suit property as described in the agreement Ext.PW1/A and jamabandi Ext.DW1/A in favour of the plaintiff within a period of three months to be reckoned from today. A decree of permanent prohibitory injunction is also passed in favour of the plaintiff and against the defendant restraining the defendant from selling the suit property in favour of any other person except plaintiff. However, the decrees passed subject to the condition that the plaintiff shall deposit in the Court deficit court fee of Rs.29/- within a fortnight period, otherwise the suit shall be deemed to have been dismissed. Decree sheet be drawn up accordingly. The file after due completion be consigned to the record room”. as well as for setting aside the judgment and decree passed in appeal by the Court of learned District Judge (F), Shimla, H.P. in Civil Appeal No.62-S/13 of 07/05, titled as Deep Ram Versus Sohan Lal Sharma, decided on 23.10.2008, whereby the first appeal filed by the present appellant against the judgment and decree passed by the learned Trial Court was dismissed. 2. 2. Brief facts necessary for the adjudication of the present appeal are that respondent/ plaintiff filed a suit for specific performance as well as permanent prohibitory and mandatory injunction against the present appellant inter alia on the ground that vide agreement to sell dated 28.06.1990, plaintiff had agreed to purchase half share of land situated towards southern side (6 karms x 7 karms) and half share of old house mentioned in Akash Tatima Sazra Kistbar Mauja-Kasumpti Junga, Tehsil and District Shimla, H.P. comprised in khata khatauni No.17/27 min, kh. No.256/122/1, measuring 0-4 biswas which portion of the land agreed to be sold to the plaintiff was now comprised in kh No.340 as per Nakal Akash Tatima Sazra Kistbar Mauja-Kasumpti-Junga, Tehsil and District Shimla, H.P. (hereinafter referred to a the suit property) for total consideration of Rs.70,000/-. 3. According to the plaintiff, this amount was paid by the plaintiff by way of bank draft dated 28.06.1990 for a sum of Rs.25,000/- as well as by way of payment of Rs.45,000/- in cash against a receipt duly acknowledged by the defendant in the agreement to sell itself. As per the plaintiff at the time of execution of the agreement possession of the half share of the land as well as half share of the old house stood handed over by the defendant to the plaintiff. On his property, defendant constructed a five storeyed building whereas plaintiff raised a three storeyed building on part of the land and the remaining portion was vacant. While raising construction of the five storeyed building defendant extended projection of his property on the land of the plaintiff and also opened windows etc. on the said common wall despite objections. According to the plaintiff, defendant had no right to do so i.e. to open windows etc. the land of the plaintiff and on the common wall, as plaintiff had paid money in proportion to his contribution towards the construction of the wall. It was further the case of the plaintiff that in terms of Clause 4 of the agreement it stood agreed between the parties that after completion of one storey or as and when plaintiff felt it necessary, defendant would execute a sale deed in his favour. It was further the case of the plaintiff that in terms of Clause 4 of the agreement it stood agreed between the parties that after completion of one storey or as and when plaintiff felt it necessary, defendant would execute a sale deed in his favour. Plaintiff was ready and willing to perform his act and was requesting the defendant since the year 1996 to execute the sale deed in his favour, however, defendant failed to do so. Plaintiff served a notice dated 07.05.1998 upon the defendant for the purpose of execution of the sale deed, however, despite receipt of the notice, defendant did not execute the sale deed. It was further the case of the plaintiff that there were certain trees growing upon the suit land and plaintiff had every right to use them, however, defendant with a malafide intent applied for cutting of one of the tree, claiming ownership over the same to the Municipal Corporation. As per the plaintiff that defendant was threatening not to execute the sale deed and dispose of the property. As per the plaintiff, the cause of action lastly arose on 07.05.1998 when notice was served upon the defendant asking him to execute the sale deed within 15 days, which he did not do. Accordingly, plaintiff filed the suit praying for a decree of specific performance of contract and for permanent prohibitory injunction for restraining the defendant from raising any construction over the suit land and cutting two 'Deodar? trees. 4. The suit was resisted by the defendant inter alia on the ground that the same was barred by limitation. It was further the defence of the defendant that plaintiff had failed to perform his part of the agreement as plaintiff had only paid an amount of Rs.45,000/- to the defendant and the balance amount in terms of the agreement entered into between the parties was not paid by the plaintiff. As per him Rs.25,000/- was paid by way of Bank Draft and Rs.20,000/- in cash. Though, the defendant did not deny the execution of the agreement to sell, but according to him, the plaintiff had failed to perform his part of the agreement and therefore, he was not entitled for any decree as prayed for. As per him Rs.25,000/- was paid by way of Bank Draft and Rs.20,000/- in cash. Though, the defendant did not deny the execution of the agreement to sell, but according to him, the plaintiff had failed to perform his part of the agreement and therefore, he was not entitled for any decree as prayed for. Incidently, the construction of house over the suit land by plaintiff was not specifically denied, however, as per the defendant, plaintiff could be treated as licencee over the same. Defendant contended that Clauses 3 and 4 of the agreement were not adhered to and thus violated by the plaintiff. Receipt of Rs.25,000/- was categorically denied. As per him, the trees standing over the land belonged to him and plaintiff had no right or title over the same. Further, as per him, the common wall which was agreed to be constructed by the parties in fact had not yet been constructed and the land on the spot was vacant. 5. On the basis of the pleadings of the parties, learned Trial Court framed the following issues:- “1. Whether the plaintiff is entitled to the decree for specific performance of agreement of sale dated 28.6.1990 as prayed ? OPP. 2. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction as prayed? OPP. 3. Whether plaintiff is entitled to the relief of mandatory injunction as prayed? OPP. 4. Whether the suit in the present form is not maintainable as alleged? OPD. 5. Whether plaintiff is estopped from filing the present suit as alleged? OPD. 6. Whether the suit is barred by time limitation as alleged? OPD. 7. Whether the suit is not properly valued for the purpose of court fee and jurisdiction as alleged? OPD. 8.Whether plaintiff has no cause of action? OPD. 9. Whether the plaintiff is not in possession of the suit land as alleged? OPD. 10. Relief”. 6. On the basis of evidence led by the parties in support of their respective contentions, learned Trial Court returned the following findings on the issues so framed:- “Issue No.1 Yes. Issue No.2 Yes. Issue No.3 Yes. Issue No.4 No. Issue No.5 No. Issue No.6 No. Issue No.7 No. Issue No.8 No. Issue No.9 No. Relief Suit decreed with costs in the manner indicated in the relief clause as per operative portion of the judgment”. Issue No.2 Yes. Issue No.3 Yes. Issue No.4 No. Issue No.5 No. Issue No.6 No. Issue No.7 No. Issue No.8 No. Issue No.9 No. Relief Suit decreed with costs in the manner indicated in the relief clause as per operative portion of the judgment”. Relief Suit decreed with costs in the manner indicated in the relief clause as per operative portion of the judgment”. 7. Learned Trial Court held that the execution of the agreement i.e. the agreement to sell stood duly proved on record. It took note of the fact that the execution of the document in issue i.e. Ext.PW1/A was not disputed even by the defendant. While negating the statement of DW-2 Surat Ram, one of the marginal witnesses, who deposed in the Court that plaintiff had not made any payment to the defendant, learned Trial Court held that his statement could not be looked into because the same was beyond pleadings. Learned Court further held that contents of the agreement Ext.PW1/A when perused harmoniously with the written statement, demonstrated that possession of the suit land stood delivered by the defendant to the plaintiff. It held that this also stood duly proved by the statements of PW1- Sohan Lal, PW-2 Dinesh Thakur and PW-3 Surinder Sharma. On these basis, learned Trial Court held that the plaintiff was entitled for a decree of specific performance of agreement to sell dated 28.06.1990. It further held that as the possession of the suit land was with the plaintiff and as plaintiff was entitled for a decree of specific performance of agreement to sell, therefore, plaintiff was also entitled for a decree of permanent prohibitory injunction. Learned Trial Court also held that the suit was within limitation as in terms of the agreement which was entered into between the plaintiff and defendant, the starting point of limitation was to be in terms of Clause 4 of the agreement i.e. when the plaintiff felt the necessity of executing the sale deed. It held that Notice stood issued to the defendant to execute the sale deed on 07.05.1998, which was duly served upon defendant and thus, limitation of three years had to be construed as from 07.05.1998 and therefore, the suit was within limitation. Accordingly, learned Trial Court passed a decree for specific performance of agreement to sell in favour of the plaintiff and against the defendant. Accordingly, learned Trial Court passed a decree for specific performance of agreement to sell in favour of the plaintiff and against the defendant. Learned Trial Court also mandated the defendant to execute the sale deed with regard to property described in Ext.PW1/A within three months as from the date of judgment and decree. It also granted a decree for permanent prohibitory injunction in favour of the plaintiff and against the defendant restraining defendant from selling the suit property in favour of any other person except plaintiff. 8. In appeal, these findings were upheld by the learned First Appellate Court. Learned Appellate Court while dismissing the appeal filed by the defendant held that Clause 4 of the agreement clearly stipulated that the sale deed was to be executed after completion of one storey or as and when the second party felt it necessary. It held that the recitals clearly suggested that it was allowed to the second party i.e. the plaintiff to fix the time when the sale deed was to be executed. On these basis, it held that the limitation started running only as from that date when plaintiff felt it necessary to execute the sale deed. Learned Appellate Court further held that as far as contention of the defendant that entire sum of Rs.70,000/- was not paid was concerned, the same was without any merit as the factum of passing of the said consideration was duly mentioned in the sale agreement Ext.PW1/A itself and the statement of Surat Ram, one of the marginal witnesses to the contrary, was of no assistance to the defendant. 9. On these basis, learned Appellate Court held that the learned Trial Court had correctly decided the controversy between the parties regarding readiness and willingness of performance by the plaintiff as well as the suit of the plaintiff being within limitation. 10. Feeling aggrieved, defendant filed this second appeal, which was admitted on 12.12.2008, on the following substantial questions of law:- “1. Whether the Courts below have misread, misinterpreted and misconstructed the documents Ext.PW-1/A having contrary clauses relating to the time period as to its execution? 2. Whether the document Ext.PW-1/A stating contrary averments qua payment of consideration have been rightly interpreted by Courts below in the light of oral, cogent evidence produced by present appellant?” 11. Whether the Courts below have misread, misinterpreted and misconstructed the documents Ext.PW-1/A having contrary clauses relating to the time period as to its execution? 2. Whether the document Ext.PW-1/A stating contrary averments qua payment of consideration have been rightly interpreted by Courts below in the light of oral, cogent evidence produced by present appellant?” 11. Learned counsel for the appellant while making submissions on Substantial questions of law, argued that both the learned Courts below have erred in not appreciating that the suit was hopelessly time barred and further amount of Rs.70,000/- was not paid by the plaintiff to the defendant in terms of the agreement to sell which vitiated the agreement entered into between the parties. Learned counsel for the appellant also argued that Ext.PW1/A was not binding on the appellant as Clauses therein were contrary to each other. No other point was urged. 12. On the other hand, learned Senior Counsel, appearing for the respondent argued that both the learned Courts below have concurrently held in favour of the plaintiff and rightly so that an amount of Rs.70,000/- was duly paid by the plaintiff to the defendant and also that the suit was within limitation. He argued that the terms of the contract were explicit that the sale deed was to be executed in terms of Clause 4 thereof which conferred the right upon the plaintiff to decide as to when he wanted the sale deed to be executed. Learned Senior Counsel argued that as from the date when Notice was issued to the defendant to execute the sale deed, the suit which was filed within a period of three years and therefore, there is neither any misreading nor any misconstruction of Ext.PW1/A by the learned Courts below. He has further argued that there were no contradicting Clauses in the agreement as contended by the appellant. 13. I have heard learned counsel for the parties on the said substantial questions of law and have also gone through the judgments and decrees passed by the learned Courts below as well as the record of the case. 14. Ext.PW1/A is the agreement entered into between plaintiff and defendant on 28.06.1990. In terms of this agreement, the suit land was agreed to be sold by present appellant to the respondent herein for total sale consideration of Rs.70,000/-. 14. Ext.PW1/A is the agreement entered into between plaintiff and defendant on 28.06.1990. In terms of this agreement, the suit land was agreed to be sold by present appellant to the respondent herein for total sale consideration of Rs.70,000/-. A perusal of the contents of the agreement demonstrates that it stood mentioned therein that the entire sale consideration stood received by the seller and the breakup of the same was also mentioned in the agreement. To be more clear, it was mentioned in the agreement that out of the total sale consideration of Rs.70,000/-, the seller had received Rs.25,000/- by way of bank draft drawn on Punjab & Sindh Bank, Shimla dated 28.06.1990 and remaining Rs.45,000/- was received by way of cash at the time of signing of the agreement. Clause 1 of the agreement states that the first party i.e. the seller had received full and final payment of Rs.70,000/- and had acknowledged the same. He had handed over the possession of half share of the land/ house to second party and first party will have no objection if the second party (purchaser) raises any construction over the said land. Clause 4 of the agreement read as under:- “That after completion of one Storey or as and when the Second party feels necessary the First Party will execute a sale deed in favour of Second party” Having perused the contents of agreement to sell thoroughly, in my considered view, there is no merit in the contention of learned counsel for the appellant that there were contrary terms contained in the said agreement. Even otherwise, the appellant cannot be permitted to take this plea especially as it is a signatory to the said agreement and it is bound by the terms of the agreement as it stood entered into by the appellant with the respondent. In addition, as it is clearly borne out from the Clauses of the agreement that the total sale consideration stood received by the seller, therefore, the contention of learned counsel for the appellant that both the learned Courts below have erred in coming to the conclusion that the total sale consideration stood paid to the appellant has no merit. In addition, as it is clearly borne out from the Clauses of the agreement that the total sale consideration stood received by the seller, therefore, the contention of learned counsel for the appellant that both the learned Courts below have erred in coming to the conclusion that the total sale consideration stood paid to the appellant has no merit. Concurrent findings to this effect by both the learned Courts below are clearly borne out from the contents of Ext.PW1/A. There is nothing on record that after signing of the agreement at any stage, this issue was raked up by the appellant with respondent that he had not paid total sale consideration in terms of the agreement. In my considered view, this stand which was subsequently taken in the written statement was nothing but an afterthought. Similarly, statement of marginal witness DW-2 Surat Ram is also of no assistance to the appellant, as has been rightly held by both the learned Courts below because his deposition in the Court that no sale amount was paid by the plaintiff to the defendant, is contrary to the stand taken by the defendant who in the written statement admitted that Rs.45,000/- was indeed received by him. Accordingly, in view of the reasoning returned hereinabove, it cannot be said that there is any misreading or misconstruction by the learned Courts below qua the Clauses of Ext.PW1/A or the same was not executable on account of purportedly contradictory Clauses contained therein. 15. Now, coming to the issue of limitation, I have already quoted the contents of Clause 4 of the agreement to sell in extensio hereinabove. A perusal of the said Clause clearly demonstrates that it was agreed between the parties that the sale deed would be executed either after completion of one storey or when the purchaser feels it necessary that the first party should execute a sale deed in his favour. 16. Article 54 of the Limitation Act, 1963 provides that period of limitation for specific performance of a contract is three years, as from the date fixed for the performance or if no such date is fixed, when the plaintiff has noticed that performance is refused. Admittedly in the present case in Ext.PW1/A, execution of which is not disputed by the appellant also, no date was fixed for performance of the agreement to sell. Admittedly in the present case in Ext.PW1/A, execution of which is not disputed by the appellant also, no date was fixed for performance of the agreement to sell. In these circumstances, the second part of Article 54 of the Act comes into picture, which contains that in case no date is fixed for performance of contract, then the limitation starts when plaintiff has noticed that performance is refused. 17. In this case, plaintiff had issued notice dated 07.05.1998, for execution of the sale deed, issuance of which is not in dispute. Admittedly, post issuance of the said notice, sale deed was not executed by the defendant in favour of the plaintiff. In my considered view, the omission on the part of the defendant to execute the sale deed, after a notice was issued by the plaintiff to the defendant to execute the sale deed is the point of start of limitation for specific performance of the agreement in the present case. It is not in dispute that as from the date when the notice was issued, the suit was filed within a period of three years. This is exactly what has been held by both the learned Courts below also while holding that the suit filed by the plaintiff was within limitation. The findings so returned by the learned Courts below are thus clearly borne out from the record of the case and are duly substantiated by the provisions of the Limitation Act. Therefore, there is no perversity in the findings returned by both the learned Courts below that the suit filed by the plaintiff was within limitation. Substantial questions of law are answered accordingly. 18. In view of the discussion hereinabove, as there is no merit in the present appeal, the same is accordingly dismissed, so also, pending miscellaneous application(s), if any. Interim order, if any, stands vacated.