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2020 DIGILAW 572 (RAJ)

Vimal Kanwar v. Ashok Kuamr

2020-07-20

ARUN BHANSALI

body2020
JUDGMENT 1. This second appeal is directed against the judgment & decree dated 05.10.2017 passed by the Senior Civil Judge, Raisinghnagar, District Sriganganagar and judgment & decree dated 29.03.2019 passed by the Additional District Judge, Raisinghnagar, District Sriganganagar, whereby the suit and appeal filed by the appellant-plaintiff have been rejected, respectively. 2. The appellant-plaintiff filed a suit for specific performance regarding an agreement to sale dated 10.08.1987 executed by one Lakhu Ram. Lakhu Ram died in the year 1993 and his wife Tulsi Devi died in the year 1996. As the land in question was that of compensation pool under the provisions of Displaced Persons (Compensation And Rehabilitation) Act, 1954 ('the Act1), ultimately, the khatedari in question came to be recorded in favour of the defendants, children of Lakhu Ram on 05.03.2004. The appellant issued notice on 07.08.2013 seeking execution of the sale deed as the appellant was already in possession. However, on failure to execute the sale deed, the present suit came to be filed on 21.08.2013. 3. The suit was resisted by the defendants, inter-alia, claiming that the agreement was not executed, the plaintiff was not ready and willing to perform his part of contract and that the suit was barred by limitation. 4. The trial court by its impugned judgment held in favour of the defendants on all the three aspects i.e. the agreement to sale was not executed by Lakhu Ram, the plaintiff was not ready and willing to perform her part of contract and the suit was barred by limitation. Besides the above, it was also held by the trial court that the appellant was not in possession of the property. 5. Feeling aggrieved, the appellant filed first appeal. The first appellate court though came to the conclusion that the appellant was in possession of the land in question, however, in view of the fact that khatedari was recorded in favour of the defendants on 05.03.2004 and the suit was filed in the year 2013, upheld the findings of the trial court that the plaintiff was not ready and willing to perform her part of the contract and that the suit was barred by limitation and consequently, dismissed the appeal. 6. Learned counsel for the appellant relied on the judgment of Hon'ble Supreme Court in Vundavalli Ratna Manikyam & Anr. 6. Learned counsel for the appellant relied on the judgment of Hon'ble Supreme Court in Vundavalli Ratna Manikyam & Anr. v. V.P.P.R.N. Prasada Rao : 2020 DNJ (SC) 251 and submitted that once the appellant was found to be in possession of the land in question, the said aspect should have been considered by the courts while deciding the suit/appeal and therefore, the appeal gives rise to substantial question of law. 7. Submissions have also been made that the findings recorded by the two courts below are perverse, which aspect also give rise to substantial question of law. 8. Learned counsel for the respondents supported the findings of the two courts below. It was submitted that it is an admitted case that the 'Sanad' of the land was issued on 05.03.2004 and the agreement provided for a period of one month from the date the permission was granted for transfer and once, the khatedari was recorded in favour of the defendants / 'Sanad' granted, the limitation started running from the said date as per the agreement and therefore, in terms of Article 54 of the Limitation Act, 1963, the suit was ex-facie barred by limitation having been filed after over 09 years from the date the cause of action arose and therefore, two courts below were justified in rejecting the suit and the appeal filed by the appellant. It was prayed that the appeal be dismissed. 9. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 10. The facts are not in dispute wherein the agreement was executed on 10.08.1987 for a sum of Rs.31,000/- and sum of Rs.22,000/- was paid as advance and it has been found by the appellate court that the possession of the land was also handed over. 11. The agreement dated 10.08.2017 stipulates that the balance consideration would be paid and registration would take place within one month from the date the permission for transfer was accorded by the competent authority as the land was that of compensation pool, which was though allotted but was not recorded in favour of Lakhu Ram, transferor. 12. The khatedari of the land in question ultimately came to be recorded in favour of the defendants on 05.03.2004. 12. The khatedari of the land in question ultimately came to be recorded in favour of the defendants on 05.03.2004. Nothing has come on record to indicate any attempt having been made by the appellant to seek enforcement of the agreement after the land was recorded as khatedari of the defendants, as for the first time the notice was issued on 07.08.2013 and suit was filed on 21.08.2013. 13. In terms of Article 54 of the Limitation Act, a suit for specific performance is required to be filed within three years from the date of performance stipulated in the agreement and where no such stipulation is made, within three years from the date performance is refused. 14. In view of the fact that the agreement provided for payment of balance consideration and execution of the sale deed within one month from the date of the permission is granted and the khatedari was recorded in favour of the defendants on 05.03.2004 and the suit has been filed after 09 years, the same was ex-facie barred by limitation. 15. So far as reliance placed on the judgment in the case of Vundavalli Ratna Manikyam (supra) is concerned, a bare look at the facts of the case indicates that the agreement was executed on 07.05.1981, the sale deed was to be executed within four months, which period was extended by another 08 months and before the period expired on 06.05.1982, an acquisition notification had been issued. The proposed transferee challenged the acquisition notification, the petition was allowed in the year 1984, the appeal was dismissed in the year 1985 and immediately thereafter, the notice was issued and suit was filed, in those circumstances, the court found that dismissal of the suit as barred by limitation was not justified. 16. As in the present case, the cause arose on 05.03.2004 and the suit has been filed in the year 2013, as already held hereinbefore, the suit was ex-facie barred by limitation and therefore, the judgments of two courts below do not require any interference. 17. Consequently, there is no substance in this second appeal, the same is, therefore, dismissed.