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2020 DIGILAW 568 (RAJ)

Girdhari Singh v. Harbansh Singh

2020-07-08

ARUN BHANSALI

body2020
JUDGMENT 1. This second appeal under Section 100 CPC is directed against the judgment & decree dated 28.03.2019 passed by the Additional District Judge, Anoopgarh, District Sriganganagar, whereby the judgment & decree dated 13.09.2013 passed by the Civil Judge (Sr.Div.), Anoopgarh, District Sriganganagar has been reversed and the suit for specific performance filed by the respondent-plaintiff has been decreed. 2. The plaintiff filed suit for specific performance of contract dated 25.11.1982 with the averments that the land in question ad measuring 13 Bigha belongs to Phusaram adopted father of the defendant, who entered into agreement for the land in question for a sum of Rs.50,000/-, Rs.36,000/- were received as advance. 3. It was agreed in the agreement that the balance consideration of Rs. 14,000/- would be received by Phusaram at the time of registration of the sale deed, the possession of the land in question was handed-over on the date of agreement. It was then indicated in the plaint that the plaintiff is ready and willing to pay the balance consideration; under Section 13A of the Rajasthan Colonization Act, 1954 ('the Colonization Act1) proceedings have been done for regularisation, however, the defendant has not executed a sale deed. A notice dated 30.12.2011 was sent to the defendant despite which the sale deed has not been executed. It was prayed that decree for specific performance be passed and the defendant be directed to execute the sale deed and a permanent injunction be issued against him. 4. The defendant filed written statement denying the averments made in the plaint. The execution of the agreement and handing over of the possession was denied. It was alleged that the agreement was forged and fabricated. The land in question was of 'Gair khatedari', which in terms of provisions of the Rajasthan Tenancy Act, 1955 ('the Tenancy Act') could not be transferred. The agreement is unregistered and deficiently stamped, the suit was barred by limitation and therefore, the suit was liable to be dismissed. 5. The trial court framed six issues, parties led evidence wherein on behalf of the plaintiff four witnesses were examined and 45 documents were exhibited. On behalf of the defendant, the defendant himself appeared in the witness box and exhibited one document. 6. 5. The trial court framed six issues, parties led evidence wherein on behalf of the plaintiff four witnesses were examined and 45 documents were exhibited. On behalf of the defendant, the defendant himself appeared in the witness box and exhibited one document. 6. After hearing the parties, the trial court came to the conclusion that the land in question being 'Gair khatedari', could not be transferred under the provisions of Section 41 of the Tenancy Act, the regularization under Section 13A in favour of the plaintiff was of no avail, provisions of Section 13 of the Specific Relief Act, 1963 ('the Act1) had no application and once the agreement itself could not be executed, the same cannot be enforced. 7. The trial court did not decide the issue No.2 pertaining to readiness and willingness of the plaintiff in view of its finding regarding enforceability of the agreement. Pertaining to issue Nos.3, 4 & 5 relating to the agreement being forged and fabricated, the same being inadmissible in evidence on account of being unregistered and deficiently stamped and the suit being barred by limitation, the same were were decided against the defendant by observing that no clear evidence has been produced in support of the pleas in this regard and consequently, the suit was dismissed. 8. Feeling aggrieved, the plaintiff filed first appeal. The first appellate court, after hearing the parties, came to the conclusion that Section 41 of the Tenancy Act does not bar execution of agreement to sale and that under Section 13A of the Colonization Act such transfer could be regularized. The appellate court also took notice of the fact that documents Ex.-3 to Ex.-18 and Ex.-22 to Ex.-45 were produced indicating the deposit of the installments by the plaintiff and the water turn slips being in the name of the plaintiff. 9. The appellate court came to the conclusion that once the transfer of the land in question already stands regularized in favour of the plaintiff and that there was no bar in law qua executing an agreement to sale, there was no reason for the trial court to decide issue No.1 against the plaintiff. 10. The finding on Issue No.3 pertaining to the agreement being forged and fabricated was also negated in view of the possession, installment payment and water slips produced by the plaintiff. 11. 10. The finding on Issue No.3 pertaining to the agreement being forged and fabricated was also negated in view of the possession, installment payment and water slips produced by the plaintiff. 11. The issue pertaining to readiness and willingness was also decided in favour of the plaintiff. 12. While dealing with the issue pertaining to the document in question being unregistered and deficiently stamped, it was held that in view of proviso to Section 49 of the Registration Act, 1908 ('the Registration Act1) in a suit for specific performance, there was no necessity of document being registered and that requisite stamp duty had been paid on the document. 13. While dealing with the issue pertaining to limitation, reference to the terms of agreement wherein it was indicated that after seeking permission for transfer, the sale deed would be executed within one month and therefore, the time was not essence of the contract and the same was required to be filed within three years from the denial. The appellate court came to the conclusion that once the registered notice was sent on 30.12.2011, which was received by the defendant, the suit has been filed within limitation and consequently allowed the appeal and ordered for specific performance of contract by execution of the sale deed in favour of the plaintiff. 14. Feeling aggrieved, the present second appeal has been filed. 15. Learned counsel for the appellant reiterated the submissions as made before the two courts below. It was submitted that the agreement was unregistered and deficiently stamped, no permission was sought for transfer of the land, which was 'Gairkhatedari' and that the suit was ex-facie barred by limitation and therefore, the first appellate court was not justified in reversing the decree passed by the trial court. It was submitted that merely because the land in question has been regularized in favour of the plaintiff under Section 13A of the Colonization Act is not a reason enough to hold in favour of the plaintiff. 16. Reliance was placed on Manjunath Anandappa Urf Shivappa Hansiv. Tammanasa & Ors.: AIR 2003 SC 1391 . 17. Learned counsel for the respondents supported the judgment & decree passed by the first appellate court. 16. Reliance was placed on Manjunath Anandappa Urf Shivappa Hansiv. Tammanasa & Ors.: AIR 2003 SC 1391 . 17. Learned counsel for the respondents supported the judgment & decree passed by the first appellate court. It was submitted that once the land in question has been regularized under the provisions of Colonization Act in favour of the plaintiff and the said order has not been challenged before the appropriate authority, it is now not open for the appellant to question the regularization. 18. Further submissions were made that the submission made regarding requirement of compulsory registration of the agreement has no basis as the provisions of Section 17(l)(f) of the Registration Act came into force after the agreement in question was executed in the year 1982 and that the stamp duty paid is sufficient as applicable at the relevant time. 19. Further submissions were made that the issue pertaining to limitation was decided against the defendant by the trial court and no cross-objections were filed before the appellate court for questioning the validity of the finding on said issue and therefore, now it is not open for the appellant to question the validity of finding on issue pertaining to limitation. 20. Submissions were made that the suit is well within limitation in terms of Article 54 of the Limitation Act, 1963 ('the Limitation Act?) as the same has been filed within three years from the date of refusal. It was prayed that the appeal does not involved any substantial question of law and therefore, the same deserves to be dismissed. 21. Reliance was placed on judgment in the case of Mst. Radha Bai & Ors. v. Nachhatar Singh & Anr.: S.B. Civil First Appeal No.72/1987, decided on 19.02.2015. 22. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 23. A perusal of Ex.-2 indicates that under the provisions of Section 13A of the Colonization Act, the land in question already stands regularized in favour of the plaintiff by order dated 14.06.1996. Pursuant thereto, the entire requisite amount has been deposited by the plaintiff vide Ex.-3 & Ex.-4. The plaintiff has exhibited the water slips pertaining to the land in question, which have been issued in his favour by the Irrigation authorities. Pursuant thereto, the entire requisite amount has been deposited by the plaintiff vide Ex.-3 & Ex.-4. The plaintiff has exhibited the water slips pertaining to the land in question, which have been issued in his favour by the Irrigation authorities. Besides the above material, record indicates that due amount with the Colonization Authorities after the agreement was also deposited by the plaintiff. The plea raised based on the provisions of Section 41 of the Tenancy Act, has been accepted by the trial court in ignorance of provisions of Section 13A of the Colonization Act and the fact that the land in question already stands regularized in favour of the plaintiff. 24. This Court in the case of Radha Bai (supra) in similar circumstances came to the conclusion that such an agreement was a valid agreement and that the plea raised in this regard cannot be accepted in view of provisions of Section 13 of the Specific Relief Act. 25. In view thereof, the submissions made by learned counsel for the appellant in this regard are bereft of any substance. 26. The plea raised pertaining to agreement being unregistered and deficiently stamped has also no basis, inasmuch as, the provisions of Section 17(l)(f) of the Registration Act were inserted w.e.f. 18.09.1989 requiring an agreement to sale immovable property, possession thereof has been or is handed-over to the purported purchaser as a document requiring compulsory registration. As the agreement in question is dated 25.11.1982, the said provision has no application to the present case. The stamp duty at the relevant time under the Rajasthan Stamp Law (adoption) Act, 1952 under Entry 5 was Rs.5/- only and therefore, it cannot be said that the document in question is insufficiently stamped. 27. In view thereof, the plea raised in this regard also has no substance. 28. So far as the issue of limitation is concerned, though the trial court dealt with the issue in a cursory manner and held the same against the defendant, the first appellate court has thoroughly examined the issue despite the fact that there was no cross-objections filed by the defendant and came to the conclusion that the time was not the essence of the contract and therefore, in terms of Article 54 of the Limitation Act, the limitation would start from the date performing is refused. 29. 29. The facts in the present case are quite typical wherein the agreement was executed in the year 1982, the possession was immediately handed-over, bulk of the consideration was paid in advance and the balance consideration was to be paid at the time of execution of the sale deed after getting requisite permission from the authorities for transfer. 30. Admittedly, the permission was never obtained / granted. After the agreement was entered into, the plaintiff paid the balance installments of the land in question to the Colonization Authorities and the water slips were also issued in his favour, which necessarily means that he was in complete possession of the land in question alongwith all the incidents of owner except for a transfer in his favour. Whereafter, under the provisions of Section 13A of the Colonization Act, the land was regularized in his favour, further fortifying / consolidating his status and thereafter when the notice was issued for executing the sale deed, the same apparently gave the cause of action to the plaintiffs to seek specific performance of the agreement to the extent of execution of the sale deed. 31. Merely because the agreement pertains to the year 1982 and the suit was filed in the year 2012, by itself cannot be a reason to come to the conclusion that the suit is barred by limitation unless the defendant is able to establish the point of time, from which the limitation started to run in terms of Article 54 i.e. either any date is fixed in the agreement or in absence thereof the performing is refused. 32. Once neither of the two conditions have been established by the defendant, from the date of issue of notice, the limitation has been rightly computed by the appellate court and the suit in the circumstances of the case has been rightly held to be within limitation. 33. So far as reliance placed on judgment in the case of Manjunath Anandappa (supra) is concerned, the facts of the said case and the present case are totally different as in the said case neither the possession of the land had been handed-over to the proposed transferee nor the same stood regularized in his favour and the suit was filed after the land had been sold by the defendant in favour of some other parties. As such, the law laid down in the above case has no application to the present case. 34. No other point was argued. 35. In view of the above discussion, no substantial question of law arises for consideration of this Court in the present second appeal. Consequently, the same is dismissed.