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2021 DIGILAW 150 (RAJ)

Shri Santa Singh v. Mst. Chand Kaur Widow

2021-01-20

ARUN BHANSALI

body2021
JUDGMENT 1. Heard learned counsel for the parties on admission. 2. Learned counsel for the appellants made submissions in relation to the concurrent findings by the two courts below on issue No.7 pertaining to the suit being barred by limitation and finding of the trial court pertaining to the readiness and willingness on part of the appellant under issue No.4. Further submissions were made that the trial court was not justified in ordering for delivery of possession of the suit property while denying the relief of specific performance. 3. It was emphasized that the finding on issue pertaining to limitation is perverse and that the appellate court fell in error in not deciding the issue pertaining to readiness and willingness, which was wrongly determined by the trial court. 4. Submissions were also made that in absence of any counter claim on part of the defendants seeking possession of the suit property, which was delivered to the appellants in part performance of the contract, the relief granted by the trial court and not dealt with by the first appellate court, cannot be sustained. On the said aspect, reliance was placed on Nabi Khan through LRs. & Ors. v. Roojdar & Ors.: 2010(2) WLC(Raj.) 630. 5. It was prayed that on the said aspects, the appeal involves substantial questions of law. 6. Learned counsel for the respondents vehemently opposed the submissions. It was submitted that the two courts below have concurrently found the suit as barred by limitation, the finding on readiness and willingness is finding of fact, which is apparent from the consideration made by the trial court and that the appellants having failed in their suit for specific performance, are not entitled to retain possession of the suit property. 7. Reliance was placed on Mohan Lal through his LRs. & Ors. v. Mira Abdul Gaffar & Anr.: AIR 1996 SC 910 . 8. Further submissions were made that the issue regarding the grant of relief pertaining to possession was not raised before the first appellate court and even in the present appeal the said aspect has not been raised and, therefore, the appellants are not entitled to raise the said issue. 9. 8. Further submissions were made that the issue regarding the grant of relief pertaining to possession was not raised before the first appellate court and even in the present appeal the said aspect has not been raised and, therefore, the appellants are not entitled to raise the said issue. 9. Having considered the submissions made by learned counsel for the parties, a perusal of the finding of the trial court as well as the first appellate court regarding the issue of limitation indicates that both the courts have relied on the averments contained in the suit (Exhibit - A/1) filed by the appellant-Santa Singh for permanent injunction on 06.11.1986, wherein in para-6, it was specifically averred that on 15.10.1986 when the defendants were told to execute the sale-deed after seeking permission, the defendants indicated that they will not sell the land to the plaintiffs and after seeking permission, would execute the sale-deed in name of someone else and would get the plaintiffs evicted and that the cause of action arose on 15.10.1986. 10. The averments made in the said suit are specific regarding the denial made by the respondents-defendants on 15.10.1986 and the present suit was filed seeking specific performance of the contract on 19.04.2000 as such in view of provisions of Article 54 of the Limitation Act, 1963, wherein the cause of action for filing the suit, inter alia, occurs on the refusal of performance by the defendants, the concurrent findings of the two courts below regarding the suit being barred, do not give rise to any substantial question of law. 11. The issue of readiness and willingness to perform the plaintiff's part of contract, besides being finding of fact, the consideration made by the trial court based on the fact that despite specific case of the plaintiffs that the performance was refused in the year 1986, filing of the suit after 14 years in the year 2000 itself was sufficient to conclude that the plaintiffs were not ready and willing to perform part of the contract, cannot be faulted. 12. 12. In view of the nature of conduct as noticed, the mere fact that the appellate court on account of the fact that issue of readiness and willingness was decided by the trial court alongwith the issue pertaining to limitation, specifically did not make observations pertaining to the aspect of readiness and willingness, do not vitiate the finding and as such the said aspect also does not rise to any substantial question of law. 13. However, in view of the judgment in the case of Nabi Khan (supra) cited by learned counsel for the appellants, the following substantial questions of law arise for consideration in the presnt appeal:- (i) Whether the trial court was justified in directing delivery of possession of the suit property to the defendants in absence of any counter claim/application/prayer in this regard? (ii) Whether in a case where the property has been delivered to the vendee in part performance of the contract and his suit seeking specific performance of contract fails, the vendor is entitled to delivery of possession without taking any steps in the suit in this regard? Admit. Issue notice. 14. As learned counsel Mr. Vijay Jain appears for the respondents, no need to issue fresh notice. 15. Heard on stay application. 16. The interim order dated 21.04.2010 staying dispossession of the appellants from the suit land is confirmed to last till the disposal of the appeal. However, the respondents would be free to move an appropriate application seeking grant of mesne profit during the pendency of the appeal. 17. With the above observations, the stay application stands disposed of.