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2025 DIGILAW 66 (JK)

Abdul Hamid Kaloo v. Ranbir Singh Tula

2025-02-24

SANJAY DHAR

body2025
ORDER : 1. Through the medium of present appeal, the appellant has challenged order dated 04.01.2025 passed by the court of learned Additional District Judge, Srinagar (hereinafter referred to as “the trial court”), whereby application of the respondents/defendants under Order 7 Rule 11 CPC has been allowed and the suit of the plaintiff/appellant has been dismissed. 2. Admit 3. Issue notice to the respondents. Mr. N. A. Tabasum, Advocate, who is on caveat, accepts notice on behalf of the respondents. The caveat stands discharged. 4. Heard learned counsel for the parties and perused the impugned judgment, grounds of appeal and the documents placed on record. 5. It appears that the appellant/plaintiff had filed a suit for specific performance of agreement to sell dated 19 th April, 2004 read with supplementary agreement to sell dated 31 st August, 2005 in respect of land measuring 01 kanal falling in Khasra No.743-min situated at Nigeen Bagh, Srinagar, against the defendants. The plaintiff had also sought a prohibitory injunction against the defendants restraining them from executing further documents with respect to the suit property and also restraining them from dispossessing the plaintiff from the suit property. 6. As per the averments made in the plaint, the plaintiff claimed to be owner in possession of the land in question by virtue of agreement to sell dated 19 th April, 2004. It was claimed that the plaintiff had paid an amount of Rs.5.00 lacs in instalments to defendant No.1 and after receiving the said amount, possession of the suit property was delivered to the plaintiff. 7. Another supplementary affidavit dated 31 st August, 2005 was executed between the parties in which it was admitted by defendant No.1 that consideration amount of Rs. 5.75 lacs had been received by him. It was pleaded that after execution of the agreement to sell and supplementary agreement to sell, defendants No.2 and 3 have received the sale consideration and they have delivered possession of the suit land to the plaintiff who is in possession thereof without any interference right from the year 2004. 8. It was pleaded in the plaint that a couple of days prior to the filing of the suit, some persons approached the plaintiff and told him that they have purchased the aforesaid land. 8. It was pleaded in the plaint that a couple of days prior to the filing of the suit, some persons approached the plaintiff and told him that they have purchased the aforesaid land. It was pleaded that the defendants have committed breach of contract and that attorney holder of defendant No.4 is trying to dispossess the plaintiff from the suit while claiming to have purchased the land in question by virtue of agreement to sell and attorney dated 18.02.2001. It has been pleaded by the plaintiff that he approached the defendants for registration of the sale deed but they tried to delay the matter. According to the plaintiff, he is ready and willing to abide by all the terms and conditions of the agreement to sell but defendant No.1 is avoiding to execute the sale deed on the ground that the plaintiff is not paying full and final sale consideration. It has been pleaded that the defendants are hell bent upon dispossessing the plaintiff from the suit property and that cause of action had accrued in his favour a few days prior to the filing of the suit when one person, namely, Aijaz Ahmad tried to dispossess him from the suit property. 9. It seems that during pendency of the suit, defendants No.5 to 7 filed an application under Order 7 Rule 11 CPC before the trial court in which they contended that the subject matter of the suit is migrant property as defined under the Jammu and Kashmir Migrant Property (Preservation, Protection and Restraint on Distress Sales), Act, 1997 (hereinafter referred to as “the Migrant Act”) and that defendants No.5 to 7 are migrants as defined under the Migrant Act. It was submitted that defendant No.5 had approached the District Magistrate, Srinagar, with an application seeking eviction of the plaintiff from the suit property and the District Magistrate, after scrutinizing the revenue record and after hearing the parties, passed eviction order against the plaintiff in terms of Section 5 of the Migrant Act. It was further pleaded in the application that the plaintiff challenged these eviction orders and eviction notices before this Court by way of a writ petition bearing WP(C) No.318/2023 but the same was dismissed by this Court in terms of judgment dated 06.03.2024. Thereafter another eviction notice was issued against the plaintiff under the provisions of the Migrant Act. It was further pleaded in the application that the plaintiff challenged these eviction orders and eviction notices before this Court by way of a writ petition bearing WP(C) No.318/2023 but the same was dismissed by this Court in terms of judgment dated 06.03.2024. Thereafter another eviction notice was issued against the plaintiff under the provisions of the Migrant Act. On the basis of these facts, defendants No.5 to 7 have submitted that the suit of the plaintiff is barred in terms of Section 8 of the Migrant Act. 10. Another contention that was raised by defendants 5 to 7 in their application was with regard to limitation. It was contended by the said defendants that the plaintiff has filed the instant suit on 31.10.2012 seeking specific performance of agreements to sell executed in the years 2004 and 2005. According to defendants No.5 to 7, the limitation period for filing the suit for specific performance is three years but in the instant case, the plaintiff has filed the suit after a period of more than seven years of execution of the agreement to sell/supplementary affidavit, therefore, the same is hopelessly barred by time. 11. The appellant has challenged the impugned order on the grounds that defendants No.5 to 7, the previous owners of the land in question, were not registered migrants and without there being any evidence on record to this effect, it was not open to the trial court to proceed on the basis that the provisions of the Migrant Act are applicable to the present case. It has been contended that the question whether the aforesaid defendants were migrants, is a triable issue which could have been determined only after trial of the case and the same could not have been determined at the time of considering the application of the defendants under Order 7 Rule 11 CPC, particularly when the same was not admitted by the appellant/plaintiff. It has also been contended that the appellant/plaintiff was in continuous possession of the suit property and, as such, the cause of action in his favour arose only when the defendants tried to interfere in his possession and, therefore, the suit of the plaintiff could not have been dismissed on the ground of limitation. 12. It has also been contended that the appellant/plaintiff was in continuous possession of the suit property and, as such, the cause of action in his favour arose only when the defendants tried to interfere in his possession and, therefore, the suit of the plaintiff could not have been dismissed on the ground of limitation. 12. It is a settled position of law that at the time of considering an application under Order 7 Rule 11 CPC, only the averments made in the plaint and the documents placed on record by the plaintiff, on the basis of which the suit is filed, are to be considered. If upon consideration of this material, the suit does not disclose the cause of action or the same is found to be barred by any law, the plaint can be rejected at any stage of the proceedings in terms of Order 7 Rule 11 clauses (a) and (d) of the CPC. While considering an application under Order 7 Rule 11 CPC, the Court has to bear in mind that the averments made by a defendant in his written statement or the documents relied upon by him are not to be considered at this stage. 13. With the aforesaid legal position in view, let us now proceed to consider the present case. As per the suit filed by the appellant/plaintiff before the trial court, he had executed an agreement to sell with defendant No.1 with respect to suit land on 19 th April, 2004. Thereafter a supplementary agreement to sell dated 31 st August 2005, was executed by the parties. Copies of both these agreements have been placed on record by the plaintiff before the trial court and the same form the basis of the suit of the plaintiff. In the plaint, it has been submitted that the cause of action has accrued to the plaintiff a few days prior to filing of suit when one person, Shri Aijaz Ahmad, tried to dispossess him from the suit land. The prayer in the suit is relating to decree of specific performance against defendant No.1 in respect of the suit land with a consequential relief of permanent prohibitory injunction against dispossession of the plaintiff from the suit land. 14. The prayer in the suit is relating to decree of specific performance against defendant No.1 in respect of the suit land with a consequential relief of permanent prohibitory injunction against dispossession of the plaintiff from the suit land. 14. As per the provisions contained in Article 84 of the first Schedule of the J&K Limitation Act, which is applicable to the present case, the limitation period for filing a suit for specific performance of contract is three years from the date fixed for performance or if no such date is fixed when the plaintiff has notice that performance is refused. 15. In the instant case, a perusal of the covenants of the agreement dated 19 th April, 2004 reveals that there is no time period fixed in the said agreement with regard to performance of the agreement nor any date is mentioned therein with regard to execution of the sale deed by the parties. However, in the supplementary agreement dated 31 st August, 2005, it is specifically stated that in case party of the first part fails to execute the sale deed in favour of party of 2 nd part within a period of one month, then party of the first part shall refund amount of Rs.5.75 lacs and Rs.50,000/ as penalty for violating the agreement to sell. From this, it is clear that though initially the parties had not fixed any date for specific performance of agreement to sell but by way of supplementary agreement to sell, it was agreed by the parties that sale deed shall be executed within one month of execution of the supplementary agreement to sell dated 31 st August, 2005, meaning thereby that the period of limitation against the plaintiff would start running from 1 st October, 2005. 16. The plaintiff has, admittedly, filed the suit before the trial court on 31.10.2012 i.e. after more than seven years of the date fixed for performance of the agreement to sell. There is no averment in the plaint to explain the circumstances under which the plaintiff could claim that limitation period for filing the suit would start running against him on a date other than the date falling one month after execution of supplementary agreement dated 31 st August, 2005. The only pleading which has been incorporated by the plaintiff in the plaint is that a few days prior to the filing of the suit Mr. The only pleading which has been incorporated by the plaintiff in the plaint is that a few days prior to the filing of the suit Mr. Aijaz Ahmad tried to dispossess him from the suit property. Had it been a suit for injunction simplicitor, perhaps such a pleading could have come to the rescue of the plaintiff but in the instant case, the plaintiff is seeking the main relief of specific performance of agreement to sell against the defendants with a consequential relief of injunction. The main relief sought by the plaintiff, as already indicated, is hopelessly barred by limitation and, as such, the consequential relief is also not available to him. Thus, the provisions contained in Clause (c) of Order 7 Rule 11, which provides for rejection of plaint on the ground of a statutory bar, are clearly attracted to the present case. 17. Since finding of the trial court that the suit of the plaintiff is hopelessly barred by time and, as such, liable to be rejected, is being upheld, as such, there is no need to go to other grounds urged by the appellant. There is, thus, no reason to interfere with the impugned order passed by the trial court. The appeal lacks merit and is dismissed accordingly. 18. Copy of this order be sent to the learned trial court for information.