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BHAZAN LAL versus BAL GOVIND

High Court of Judicature at Allahabad

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Bhazan Lal v. Bal Govind - SECOND APPEAL No. 1571 of 1987 [2007] RD-AH 12197 (18 July 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.19

Second Appeal No. 1571 of  1987

Bhajan Lal and another.....................................................Appellants

Versus

Sri Bal Govind and another............................................Respondents

Connected with -

Second Appeal No. 1582 of  1987

Bhajan Lal and another.....................................................Appellants

Versus

Ram Swaroop and another..............................................Respondents

******

Hon.Tarun Agarwala, J.

Heard Sri Satya Prakash, the learned counsel holding the brief of Sri A.N.Sinha, the learned counsel for the plaintiffs-appellants.

List has been revised. No one appears for the defendants/ opposite parties.

The plaintiffs instituted a suit for specific performance praying that the defendants be directed to execute a sale-deed either in favour of plaintiff No.2 or in favour of the plaintiff No.1 or in favour of both of them whoever is found by the Court to have the right as per the alleged agreement dated 4.11.1973 and/or agreement dated 17.10.1978 with regard to the property No.322 measuring 4 biswas in Nabasta (Baba Nagar), Hamirpur Road, Kanpur.

The facts leading to the filing of the suit is that the defendant No.1 Sri Bal Govind agreed to sell 4 biswas land in favour of plaintiff No.1 and also received the entire amount. The fact that he had sold the land and had received the consideration was recorded on a piece of paper. Based on this agreement, dated 4.11.1973, the plaintiffs entered into possession and, soon thereafter, constructed their house on two biswas of land. The remaining two biswas was left open and was being used as their sehan. This agreement did not specify any time period for the execution of the sale-deed. It seems that the defendants desired some further amount in order to execute the sale-deed and consequently, a second agreement dated 2.4.1975 was executed between the defendant No.1 with the plaintiff No.2 with regard to two biswas of land namely, the land which had been left vacant by the plaintiffs on a further consideration. Inspite of this agreement, the defendant No.1 demanded more money and consequently a third agreement dated 17.10.1978 was executed between the defendants and the plaintiff No.2 and this time the agreement related to the entire 4 biswas of land. In the third agreement, it was stated that a sale-deed would be executed within 15 days. The plaintiffs contended that he was ready and willing to execute the sale-deed. The defendants failed to execute the sale-deed and consequently the suit for specific performance was instituted on 27.2.1979.

During the pendency of the suit, the plaintiffs came to know on 22.3.1979 through a third person that the defendant No.1 had already executed a sale-deed in favour of defendant No.2 by means of a sale-deed dated 9.11.1978. Consequently an amendment application was filed which was allowed and the plaint was amended and a further relief was incorporated restraining the defendant No.2 from interfering in the possession of the plaintiff.

The defendant No.1 appeared and contested the suit alleging that no such agreement of 1973, 1975 or of 1978 was ever executed with the plaintiffs and that no such agreement for sale had ever been entered by the defendants with the plaintiffs. The defendant No.2 in his written statement contended that he was a bonafide purchaser and that a sale deed for value was executed between defendant No.2 and defendant No.1 vide sale-deed dated 9.11.1978 with regard to the two biswas of open land.

The trial court, after framing as many as 14 issues and, after considering the evidence that was brought on record, decreed the suit holding that the plaintiffs were entitled to a decree of specific performance and directed the defendant No.1 to execute the sale deed in favour of the plaintiffs. The trial court further decreed the suit for permanent injunction against defendant No.2 restraining him from interfering in the possession of the land with the plaintiffs.

Aggrieved, the defendants Nos.1 and 2 filed separate appeals  which were consolidated together. The lower appellate court allowed both the appeals by a common judgment and the judgment of the trial court was set aside and the suit was dismissed. The lower appellate court held  that the agreement dated 17.10.1978 executed between defendant No.1 and plaintiff No.2 could not be enforced since the said agreement was not a registered document, having been executed after 1.1.1977. The lower appellate court, also in the same breath, held that the agreement dated 2.4.1975 could not be enforced because it was also an unregistered document. The lower appellate court further found that the agreement dated 4.11.1973 had no doubt been executed by defendant No.1 with the plaintiffs and  that the said  document was an agreement for sale but could not be enforced as it had become barred by time. The lower appellate court held that the suit was instituted on 27.2.1979 which was beyond the stipulated period of three years from the date of the agreement dated 4.11.1973 and therefore,  the relief for specific performance, being barred by time,  could not be granted.

The plaintiffs being aggrieved by the aforesaid judgment filed two separate appeals which have been connected together and are being decided together.

At the time of the admission of the appeal, the court had framed the following questions of law:-

(i) Whether document Exbs.2 to 4 commonly interpret resulted into an agreement to sell entered in 1973 (vide Exb.2) and extended in 1975 (Exb.4) and again extended in 1978 (Exb.3) and therefore the suit was not barred b y limitation.

(ii) Whether assuming without admitting the unilateral documents of 1978 (Exb.3) needed registration, the plaintiff having being admitted in to possession was entitled to defend his possession in view of sec.53-A of T.P.Act and the plaintiff suit for injunction  atleast had to be decreed in all events ?"

Having heard the learned counsel for the appellants, this Court is of the opinion, that the judgment of the lower appellate court cannot be sustained. The finding of the lower appellate court that the agreement dated 4.11.1973 could not be enforced since the suit was filed in the year 1979 and was barred by limitation is patently erroneous and is against Article 54 of the Limitation Act. For facility, Article 54 of the Limitation Act is quoted hereunder:-

"54.  For specific            Three years  The   date  fixed  for the

        performance             performance, or, if  no

        of a contract.                                  Such    date    is    fixed,

 when  the  plaintiff  has  notice that performance   is  refused

From a bare perusal of the aforesaid provision, it is clear, that the time for filing a suit for specific performance is three years which begins to run from the date fixed for the performance of the agreement and, if no such date is fixed, then the period begins when the plaintiffs have notice that the performance has been refused by the defendants. The lower appellate court has given a categorical finding that the document dated 4.11.1973 exhibit 2 is an agreement for sale which had been executed by defendant No.1 in favour of the plaintiffs for the  sale of 4 biswas of land. This Court has perused exhibit 2 and finds that no time period was fixed by the parties for the execution of the sale-deed. In fact, the document indicates that the defendant No.1 had sold the property and had received the entire consideration. It has also came on record that based on this agreement, the plaintiffs had take possession of the  4 biswas of land. The amendment application under Order 6 Rule 17 of the C.P.C. which was allowed by the trial court, indicates that the plaintiffs came to know on 22.3.1979 about the refusal by the defendants when he executed a sale deed in favour of defendant No.2 vide sale-deed dated 9.11.1978 which has not been disputed by the defendants.

In Virendra Kumar vs. Daya Nand, 1982 AWC 176, this Court held as under:-

"Article 54 of the Indian Limitation Act prescribes a period of three years for filing a suit for specific performance of contract of sale. The period of limitation of three years commences to run from the date fixed for the performance in the agreement or, if no such date is fixed, when the plaintiff had notice that performance is refused. It is not in dispute that the agreement did not fix any date or time for performance. The date of agreement is irrelevant for the purpose of computing the period of limitation. For this purpose, two dates are material, namely, the date fixed for performance or, if no such date is fixed, when the plaintiff  has notice that performance is refused. From this point of view, the plaint was defective. It was very      inartistically drafted. It neither mentioned whether a date was fixed for performance of contract nor did it specially mention the date when the notice of performance was refused."

From the aforesaid, it is clear, that for the purpose of institution of a suit for specific performance, two dates are material, namely, the date fixed for specific performance of agreement and if such date is not fixed, in that event, the date when the plaintiffs had notice that the performance was refused. Consequently, the date of the execution of the agreement is immaterial. What is material is, the date of the refusal of the performance of the agreement of the defendants.  In the present case, the plaintiffs had originally stated that after the execution of the agreement of 17.10.1978, the defendant No.1 did not execute the agreement within 15 days and subsequently by an amendment application came to know on 22.3.1979 that the defendants had executed a sale-deed  dated 9.11.1978 in favour of the defendant No.2. Consequently, in view of the aforesaid, this Court holds that the suit instituted by the plaintiff on 27.2.1979 was well within the period of limitation as per Article 54 of the Limitation Act. The findings given by the lower appellate court that the suit was barred by limitation and that the agreement dated 4.11.1973 could  not be enforced is patently erroneous.

In view of the aforesaid, the Court holds that the plaintiff No.1 was entitled to a decree of specific performance pursuant to the agreement dated 4.11.1973. Consequently, it is immaterial for the  Court to go into the validity and legality of the subsequent agreements dated 2.4.1975 and 17.10.1978.

There is another aspect of the matter. Section 53-A of the Transfer of Property Act contemplates part performance of the agreement where a party is put into possession prior to the execution of  a sale-deed. It has already come on record that the plaintiffs were put in possession and that they had constructed their house on two bighas of land. Consequently, the plaintiffs were entitled for protection under Section 53-A of the Transfer of Property Act and the suit in  no manner could have been dismissed by the lower appellate court.

In view of the aforesaid, the questions of law framed by this court are answered accordingly. The judgment of the lower appellate court is quashed and the suit of plaintiff No.1 is decreed.

It has come on record that the defend

ant No.1 has died and has not left any heirs. Consequently, the plaintiffs-appellants may file an execution application before the executing court for execution of the sale-deed through the process of the Court.

The second appeal is allowed.

Dated: 18.7.2007

AKJ


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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