Karnataka High Court
Shri M. Ponnuswamy S/O Late Murugesh vs M. Thamarai Kannan S/O Late Murugesh And ... on 3 September, 2007
Equivalent citations: AIR 2008 (NOC) 506 (KAR.) = 2008 (1) AIR KAR R 3, 2008 (1) AIR KANT HCR 3, 2008 (1) AIR KAR R 3, 2008 A I H C 952, (2008) 4 KANT LJ 101
Author: Subhash B. Adi
Bench: Subhash B. Adi
JUDGMENT Subhash B. Adi, J.
1. This is 1st defendant's appeal against the judgment and decree dated 14.10.2004 in O.S. No. 15171/2000. 1st respondent is the plaintiff. 2nd respondent is defendant No. 2.
2. Suit is one for specific performance of the contract by executing the sale deed in favour of the plaintiff in respect of suit site bearing No. 78 in Sy. No. 106 of Kodihalli Village Village, H.A. Sanitary Board, Varthur Hobli, Bangalore South Taluk and No. K formed out. in southern portion of Sy. No. 105/A of Kodiballi Village, Varthur Hobli, Bangalore South Taluk.
3. Case of the plaintiff is that, 1st defendant entered into an agreement of sale dated 10.9.1980 in respect of suit schedule property for consideration of Rs. 15,000/- and advance amount of Rs. 5,000/- was paid on the date of agreement and balance of Rs. 10,000/- was agreed to be paid in installments of Rs. 1,000/-every month till 15.7.1981. Plaintiff paid all the amount as agreed. On receipt of final payment of sale consideration, the 1st defendant delivered vacant possession of the suit schedule property to the plaintiff and 2nd defendant. The 2nd defendant was one of the agreement holder along with the plaintiff, but he abandoned his rights. Plaintiff constructed the house over the suit schedule property by investing Rs. 45,000/-. The construction was completed in the year 1983, However, 1st defendant being lineal descenderd of plaintiffs mother Smt. A.L. Rajammal who was living with the plaintiff used to visit the suit schedule property and the mother died on 28.4.1999, At the time of demise of the plaintiffs mother, defendant No. l was in occupation of the suit schedule property with the plaintiffs mother as a licensee. He promised to vacate and redeliver the suit schedule property to the plaintiff. The plaintiff was always ready and willing to perform his part of the contract. The defendant did not perform his part of the contract Further there was a ban of sale till 1998. The cause of action, accrued to him when the defendant No. 1 refused, to re-deliver the possession of the suit schedule property, On these averments, the plaintiff sought for decree for specific performance.
4. 1st defendant contested the suit by filing written statement inter-alia denying the allegations made in the plaint and alleged that, the last installment was to be paid on 15.7.1981. The cause of action for the plaintiff accrued in the year 1981 and the limitation commenced from July 1981 and the suit, should have been file within three years i.e. by the end of 14.7.1.984 and alleged that, the suit is barred by limitation. Defendant No. 1 also alleged that, plaintiff never called upon the defendant No. 1 for execution of the sale and plaintiff was never ready end willing to perform his part of contract. It is also alleged that, the suit is liable to be dismissed under Order 7 Rule 11 of CPC, as suit being barred by limitation, is not maintainable. It is also alleged that, the agreement was in favour of plaintiff and defendant No. 2 and defendant No. 2 having not filed the suit, the plaintiff alone cannot maintain the suit and suit is required to be dismissed on the said ground also. Further it is alleged that the suit filed after nearly 16 years from the date of agreement and the said suit is liable to be dismissed not only on the ground of delay, but also on the ground of latches,
5. Defendant No. 2 though served, did not choose to file any written statement.
6. The trial Court framed the following issues:
i) Whether the plaintiff proves that he entered into sate agreement with defendant No. 1 on 10.9,1980 pertaining to suit schedule property?
ii) Whether the plaintiff proves that he had paid entire sale consideration to defendant No. 1?
iii) Whether the plaintiff proves that there was breach of contract by defendant No. 1?
iv) Whether the plaintiff proves that he is willing and ready to perform his part of contract?
v) Whether the plaintiff is entitled for the delivery of vacant possess ion of suit schedule property?
vi) Whether the plaintiff is entitled for specific performance as sought for?
vii) Whether the plaintiff is entitled for mesne profits as sought for?
viii) Whether the suit is barred by limitation?
ix) What decree or order?
7. Plaintiff got: himself examined as PW. 1 and got. marked Exs. P1 to P3. On the other hand, defendant No. 1 was examined as DW. 1 and defendant No. 2 was examined as DW. 2.
8. The trial Court held that, the plaintiff has proved the agreement and proved payment of entire sale consideration and also breach of contract by the defendant No. 1, and held that the plaintiff is entitled for decree for specific performance and accordingly decreed the suit.
9. Sri Rajanna Shetty, learned Counsel for defendant No. 1 - appellant submitted that, agreement is dated 10.9.1980 as per Ex. P1. Plaintiff had paid Rs. 5,000/- on the date of agreement and Rs. 1,000/- was agreed to be paid every month i.e. on or before 15th of every month till 15.7.1981. He relied on the clause in the agreement and submitted that, in case defendant No. 1 fails to register the sale deed after receiving Rs. 15,000/- on or before 15.7.1981, he will be liable to pay penalty of Rs. 30,000/-. Relying on the said clause in Ex. P1, lie submitted that, in terms of agreement, the last payment was due on 15.7.1981 and on receiving the said amount, the sale deed was to be executed, the terms of agreement shows that, the plaintiff got the cause of action on the date of last payment and the defendant No. 1 was to execute the sale deed on or before 15.7.1981, otherwise to pay Rs. 30,000/- as penalty to the plaintiff. Relying on Ex. P1 he further submitted that, the suit is filed nearly 19 years later i.e. on 7.2.2000. He submitted that, even before filing the suit, the plaintiff had not issued any notice, demanding execution of the sale deed. Further submitted that, under Article 54 of the Limitation Act, the suit is required to be filed within three years from the date fixed for performance and if no date is fixed, then from the date of notice of refusal of performance. Relying on the said clause, learned Counsel submitted that, the suit is hopelessly barred by time. He further submitted that, the trial Court over looking the provisions of Article 54 of Limitation Act, has decreed the suit on the ground that, full sale consideration amount is paid.
10. As regards to the findings of the trial Court on the question of limitation, lea rued counsel further submitted that, the allegation made in the plaint that there was a. prohibition to sell till 1998 is not proved. He submitted that, there was no such embargo to execute the sale deed nor the plaintiff has produced any material to show that, he was prevented from seeking enforcement of the agreement In this regard he relied on para 7 and 12 of the plaint wherein the plaintiff has stated that, there was an embargo on the execution of the sale. He also relied on evidence of PW. 1 and submitted that, PW. 1 except saying that there was an embargo, he has not produced any material in proof of the said allegation. In the absence of any material to show that there was an embargo or there was a bar imposed by the Government for execution of the sale deed, the trial Court was not justified in giving a finding that the plaintiff was prevented from getting the sale deed on account of embargo. Placing reliance on the plaint averments and the evidence of PW. 1, he submitted that, the plaintiff has not proved his case of embargo till 1998.
11. He further submitted that, even after 1998 also, the plaintiff had not issued any notice to defendant No. 1 calling upon him to execute the sate deed and the said delay is also not explained by the plaintiff, He submitted that, grant of decree for specific performance being the discretionary, the plaintiff is not entitled for such a decree not only on the ground of limitation, but also in equity.
12. He further submitted that, the plaintiff has not established his readiness and willingness to perform his part of contract, as he had not call upon the defendant No. 1 at any time to get the sale deed executed in his favour except, stating in the plaint and submitted that, readiness and willingness is one of the requirement under Section 16(c) of the Specific Relief Act. He also submitted that, he had filed an application under Order 7 Rule 11 for dismissal of the suit and the said application was not disposed of by the trial Court.
13. As regards to delivery of possession, the learned Counsel submitted that, the plaint averments clearly show that, the plaintiff is not in possession of the suit schedule property, as the suit is itself for possession. He further relied on para 21 of the plaint and submitted that, the plaintiff has stated that the cause of action accrued to him on refusal of the 18t defendant to redeliver the vacant possession of the suit schedule property. Plaintiff not being in possession, he cannot claim part performance of the contract in terms of the provisions of Section 53A of the Transfer of Property Act.
14. He further submitted that, agreement is in favour of plaintiff and defendant No. 2. Plaintiff alone has filed a suit Defendant No. 2 has been examined as DW. 2. Defendant No. 2 in his evidence has stated that, he has paid the sale consideration, In this regard he also relied on Ex. P2, the receipt, wherein it is mentioned that the receipt of amount is from plaintiff and defendant No. 2. Relying on evidence of DW. 2, learned Counsel further submitted that, they had jointly agreed the purchase of suit schedule property and filing of the suit only by the plaintiff is not maintainable and the defendant No. 2 has also stated that as per the advice of the family members, he is not interested in filing of the suit.
15. Learned Counsel for the appellant has filed an application under Order 41 Rule 27 of CPC inter alia seeking leave of this Court to produce additional evidence and submitted that, the suit item No. 2 is not the property belonging to the defendant No. 1 and it belongs to one Yohan. He further submitted that, the agreement, to execute the sale deed in respect of suit item No. 2 is misconceived as the defendant. No. 1. being not the owner pf the said -property. He further submitted that, as on the date of filing of the suit, there was no cause of action for the plaintiff and defendant No. 1 has specifically denied, the cause of action and also challenge the readiness and willingness of the plaintiff. The trial Court over looking the evidence has decreed the suit. Further submitted that, there is no part performance of the contract, as the original documents are with the defendant No. 1. Relying on Ex. P3 he submitted that, this document clearly shows that the originals are with the defendant No. 1. There is no part performance of the contract nor there is cause of action to seek decree for specific performance of the contract, nor the suit was well within time and submitted that, Section 53A is not applicable to the facts and circumstances of the case.
16. Sri. Rego, learned Counsel appearing for the lat defendant relying on Ex. P1 agreement of sale, submitted that, there is no dispute that the 1st defendant had entered into an agreement with the plaintiff on 10.9.1980. It is also not in dispute that, plaintiff paid Rs. 5,000/- on the date of agreement and the plaintiff paid Rs. 1,000/- every month on or before 15th of the succeeding month and completed the payment in schedule time as required under the agreement i.e. before 15.7.1981. Plaintiff in terms of the agreement has performed his part of contract and there was nothing remaining for the plaintiff to perform, He submitted that, in part performance of the contract, Ex. P2 came to be executed. The last date of payment was on 14.7.1981. The defendant No. 1 has admitted the receipt of full sale consideration and has also admitted tire delivery of possession in favour of the plaintiff. Relying on Ex.P2 he submitted that, plaintiff was put in possession in part: performance of the contract. Plaintiff has paid the full sale consideration amount. He relied on the plaint averments at para-12 and submitted that, there was embargo imposed by the State Government, in the matter of sale of the property and that embargo was existing till 1998. He further relied on the averments made in the plaint that, the plaintiff in furtherance of Ms part performance, invested Rs. 45,000/- and built, a permanent structure on the suit schedule property. Relying on the plaint averments and the evidence of PW. 1 and Exs.P1 and P2 he submitted that, plaintiff having been put in possession in furtherance of his contract and having constructed the structure on the suit schedule property and having paid the full sale consideration, is entitled for decree.
17. He further submitted that, defendant No. 1 being the brother of the plaintiff and the mother of the plaintiff was staying with the plaintiff and when she was not well, defendant No. 1 was used to visit and he occupied the suit schedule property and thereafter he did not vacate, and as such, plaintiff sought for redelivery of possession. He further submitted that, seeking redelivery of possession does not mean that, the plaintiff was not put in possession in part performance of the contract. In this regard he relied on the evidence of DW. 2. In the cross examination he has admitted that, defendant No. 1 is staying in the house built by the plaintiff. He further submitted that, defendant No. 1 has not disputed the agreement of sale, receipt of sale consideration and the part performance of the contract He cannot now say that, the plaintiff had not performed his part of the contract. Readiness, willingness is not only specifically stated in the plaint and the documentary evidence such as Exs. P1 and P2 also establish the complete performance of contract by the plaintiff. In terms of Exs. P1 and P2 there remain nothing for the plaintiff to perform. It was only the defendant who is under obligation to execute the sale deed. His failure cannot be attributed to the plaintiff.
18. Learned Counsel relied on paragraph No. 8 of the plaint and submitted that the plaintiff has specifically pleaded that second defendant has abandoned his claim and it is only the plaintiff, who contributed money and in part performance of the contract, he constructed the residential building by spending Rs. 45,000/-. He submitted that, second defendant though served in the suit has not filed the written statement challenging the pleading. He relied on paragraphs-13 and 14 of the pleading, and submitted that, the plaintiff has specifically pleaded that the Government had imposed a ban on the sale of the land till the end of 1998. As regards to the entry of the defendant No. 1 in the suit, schedule property, learned Counsel for the plaintiff relied on paras-15, 17 and 1.8 of the plaint and submitted that on account of the relationship between the parties, defendant No. 1 was allowed to visit the plaintiffs house. Since the plaintiffs mother was residing with the plaintiff, defendant No. 1 taking advantage of the same, he occupied the schedule premises and on the demise of the plaintiffs mother on 28.4.1999, the defendant No. 1 did not vacate the suit schedule property. When he refused to vacate the property, plaintiff was constrained to file the suit and this is clear from the averments in para-21 of the plaint. Learned Counsel also relied on the pleadings in the written statement of the defendant No. 1 and submitted that the defendant No. 1 has not specifically denied the plaint averments and non-denial of averments in the plaint, it amounts to acceptance by the defendant No. 1. He further submitted that, as far as the plaintiffs case of embargo imposed by the Government, till the end of 1998 is concerned, it is not specifically denied by the defendant No. 1. He further submitted that the defendant No. 1 now cannot turn round and submit that the plaintiff has not proved his case as regards to embargo.
19. Ex. P1 and the endorsement made on the Ex. P1 is a clear proof of the complete performance of the contract by the plaintiff. Ex. P2 is a proof of part performance of the contract; by the defendant No. 1. Relying on these documents, learned Counsel submitted that, in terms of Section 53-A of the Transfer of Property Act, plaintiff having paid the full amount and having put in possession of the suit schedule property in part performance of the contract, nothing more is required to be proved by the plaintiff nor the plaintiff is required to prove Ms readiness and willingness and further submitted that the readiness and willingness will not assume any importance when the plaintiff was put in possession in part performance of the contract.
20. He relied on Article 54 of the Limitation Act and submitted that, the cause of action for filing the suit arises only when the plaintiff has the notice of refusal of performance by defendant No. 1 and submitted that the refusal of performance by defendant No. 1 was only in 1999 when the defendant No. 1 refused to vacate the suit schedule property and the suit is well within time. He further submitted that, from Ex. P3 it is clear that, based on the complaint, defendant No. 1 and his wife, they were called to the Police Station and defendant No. 1 and his wife admitted the original documents are in their possession. He submitted that the fact that documents were collected by defendant No. 1 is admitted in the cross-examination of DW-1. He further submitted that, when defendant No. 1 was in the plaintiffs house on account of the illness of his mother, the documents came in possession of the defendant No. 1.
21. As regards to the abandonment of the defendant No. 2 of his claim, learned Counsel submitted that, though defendant No. 2 is also a party to the agreement Ex. P1, however, defendant No. 2 not joining with the plaintiff to file a suit does not debar the plaintiff to sue for specific performance of the contract. He submitted that he is entitled to sue for specific performance of the contract even in the absence of defendant No. 2. He submitted that, though defendant No. 2's name is shown in Exs. P1 and P2, DW-2 has not shown his source of income for payment, of monthly installments. He further submitted that, defendant No. 2 though he was made party has remained exparte and in order to support, defendant No. 1, has entered the witness box as DW-2 and he further submitted that, defendant No. 2 not joining with the plaintiff is not fatal to the suit, hi this regard, he relied on a decision in the matter of Jahar Roy (Dead) by LRs and Anr. v. Premji Bhimji Mansata and Anr. learned Counsel submitted that, a. person cannot be prevented from bringing an action by any rule of law or practice, merely because he is a joint promisee and the other promisees refuse to join as a co-plaintiff. He submitted that, the proper course open to the plaintiff was to join as a defendant arid submitted that perfectly in consonance with the law laid down by the Apex Court, the defendant No. 2 is made party in the suit. He submitted that the action brought by the plaintiff is perfectly in accordance with law and the law laid down by the Apex Court.
22. As regards to the contention of the appellant that the suit item No. 2 does not belong to the defendant No. 2 and the said property belongs to one Yohan and the defendant No. 1 cannot execute the sale deed in respect of the said property is concerned, learned Counsel submitted that Section 13 Sub-section (1) of the Specific Relief Act does not preclude the plaintiff from bringing the suit. Even in case the vendor has imperfect title or no title, whatever title or interest that is vested in the vendor, that can be passed on to the vendee - the plaintiff. He further submitted that there is no dispute that the possessory rights are vested in defendant No. 1, It is also not in dispute that the defendant No. 1 has been in possession. Apart from this, he submitted that, this is not the defence that is taken by the defendant in the written statement, except saying in the oral evidence, no material was produced. He submitted that even in such case also, the plaintiff is entitled for the decree against the defendant No. 1. He further submitted that, even assuming that the title is imperfect or no title, the plaintiff can maintain a suit for specific performance of the contract against defendant No. 1, who is promissor. In this regard, he relied on a decision in the matter of C.V. Muni Samappa v. Kolala Gurunanjappa (Dead) and Ors. and also in the matter of Mir Abdul Hakeem Khan v. Abdul Mannan Khadri. By relying on these decisions, he submitted that the vendor cannot deny the execution of the sale deed by stating that the title is not vested in him or he has imperfect, title, under Section 13(1) of the Specific Relief Ac, he is hound to perform his part of contract and lie cannot deny on the ground that he has no title or imperfect title. He submitted that Section 13(1) confers power on the vendee to seek the title as and when the vendor gets the title or perfects his title and it does not preclude from seeking enforcement of the contract to the extent the vendee's right.
23. Apart, from this, he seriously disputed the title of Yohan and the encumbrance certificate produced by defendant No. 1 along with application under Order XLI Rule 27 of CPC and submitted that, the property referred to in the said encumbrance is not the suit, item No. 2 property. The address shown in the said encumbrance certificate is not correct.
24. He further submitted that the delivery of vacant possession in favour of the plaintiff and the defendant No. 2 and the clause that requires that, whenever the plaintiff demands, the defendant No. 1 will execute the sale deed is concerned, he submitted that Ex. P2 is a complete proof of the sale transaction and it is the liability of the defendant No. 1 to execute the sale deed. He further submitted that, any ambiguity in the document cannot be heated as fatal. The said documents cannot be treated as ambiguous and in this connection, he relied on a decision Head Note-B in the matter of The Godhra Electricityy Co. Limited and Anr. v. The State of Gujarat and Anr. and submitted that in case of any ambiguous instrument, there is no reason why the subsequent interpretation of statement should not be admissible, The oral evidence to clear the doubts in the instrument can be led to prove the document. He submitted that though it is clear as to non-mention of the owner's name and the time does not render the Ex. P2 ineffective or inadmissible, in this regard, the plaintiff has led the oral evidence and proved the performance and also the time to complete the performance of the contract.
25. Insofar as the time for performance of the contract is concerned, learned Counsel submittal that, Ex. P1 requires the plaintiff to pay the sale consideration in a stipulated time i.e., 14.7.1981, Ex. P2 is a complete proof of the entire payment before the stipulated time. As far as plaintiff is concerned, he has performed his part of contract by paying the entire sale consideration amount. The subsequent development of embargo on the sale transaction by the Government and the conduct of the defendant No. 1 in collecting the documents refusing to execute the sale deed and further non-denial of the case of the plaintiff in the plaint by the defendant No. 1 is a clear proof that the defendant in furtherance of his contract has accepted that there is no stipulation of time to perform the contract, The plaintiff in. exercise of his right well within time has field the suit immediately after the embargo was lifted by the State Government. In this regard, lie re-lied on a decision in the matter of S. Brahmanand and Ors. v. K.R. Muthugopal (D) and Ors. and submitted that subsequent request of the defendant for postponement of performance to the future date without fixing any further date for performance, the plaintiffs by their act of forbearance and not insisting on performance forthwith accepted and time for performance stands extended and its falls within Article 54 of the Limitation Act, He submitted that, plaint averment and the evidence of PW-1 coupled with the admission on the pail of the defendant No. 2 in the cross-examination of the construction of residential building by the plaintiff are the clear evidence of the performance of contract and also the proof of the fact of readiness and willingness on the part of the plaintiff to have the sale deed. However, on account of the embargo imposed by the Government till the end of 1998, plaintiff was prevented from getting the sale deed registered in his name.
26. He further submitted that, even the alleged encumbrance certificate showing the name of Yohan in respect of item No. 2 cannot be taken on record. Further, even for the argument sake if it is accepted, this Court cannot decide the title of the third party in this suit nor the Court get the jurisdiction to go into the question of the third party's title. In this regard, he relied on a decision in the matter of Kasturi v. Iyyamperumal and Ors. On these submissions, learned Counsel for the plaintiff submitted that as far as plaintiff is concerned, not only he fulfilled all his obligations under the contract, but he invested money in the construction of the residential building. In such circumstances, the defendant No. 1 is under obligation to execute the sale deed.
27. In the light of the rival contentions, the points that arise for consideration in this appeal are:
1) Whether the suit is barred by limitation?
2) Whether the plaintiff was ready and willing to perform his part of contract?
3) Whether the suit item, No. 2 belongs to the defendant No. 1?
4) Whether the trial court was justified in decreeing the suit?
28. Article 54 of the Limitation Act provides for limitation within which a. suit is required to be brought, which reads as under:
Description of suit Period of Time from which period
Limitation begins to run
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For specific 3 years The date fixed for the
performance of a performance, or, if no
contract. such date is fixed, when
the plaintiff has notice
that performance is refused.
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29. Section has twofold, one is, if there is a date fixed in the contract, then that date would be the starting point of the limitation and within three years from the said date, the suit is required to be brought. In case there is no date fixed, then it is the date on which the defendant No. 1 refuses to perform Ms part of contract.
30. The facts, which are not in dispute in this case are, the agreement is executed on 10.9.1980. Under the terms of the agreement, the plaintiff was required to pay Rs. 1,000/- every month on or before 15th and the entire sale consideration was to be paid on or before 1.5.7.1981. The payment of advance amount and the monthly amount as fixed under the agreement is also paid by the plaintiff. The relevant clause of Ex. P1 reads as under:
If the vendor fails to register the sale deed after receiving the amount of Rs. 15,000/- on or before 15.7.1981, the vendor has to pay Rs. 30,000/- as penalty to the purchasers.
Reading of this clause shows that, the vendor is required to register the sale deed after receiving the amount of Rs. 15,000/- on or before 15.7.1981. Fact that the vendor has received the amount on or before 15.7.1981 is clear from Ex. P2. As on that date, the vendor becomes liable to execute the registered sale deed. However, plaintiff's case is that, since there was an embargo to execute the sale deed till the end of 1998 he could not get the sale deed executed in his favour. As regards to this contention, though the plaintiff has stated in his evidence and as well in the plaint, but the nature of embargo is not stated nor any document is produced by the plaintiff to show, as to how the plaintiff was prevented from getting the sale deed registered in his favour till 1998. According to the plaint averment, the cause of action accrued to the plaintiff in October 1999 i.e., when the first defendant refused to re-deliver the possession. Para-21 of the plaint reads as under:
That the plaintiff is also constrained to bring the above suit, as the first defendant has refused to re-deliver vacant possession of the schedule properties to the plaintiff herein. Hence the suit.
It is alleged that, the defendant No. 1 had entered the premises on the ground that the plaintiffs mother was not well. It is alleged that the plaintiffs mother died on 28.4.1999 and the defendant No. 1 refused to execute the sate deed. Though embargo is stated in the plaint, even according to the plaintiff, he did not choose to sue for specific performance of the contract nor he demanded the registration of the sale deed even after the alleged embargo was lifted. Article 54 of the Limitation Act provides that if the date is not fixed, then it is the date of refusal. Refusal requires demand by the plaintiff and if the demand is refused, that gives the cause of action. The plaint does not show as to when the demand was made by the plaintiff for registering the sale deed in. his favour. If the plaintiff was waiting for the embargo to be lifted by the Government, the burden is on the plaintiff to show that there was embargo and it had prevented the plaintiff from seeking registration of the sale. In the absence of any evidence, relying on the averment made in the plaint, even if it is not specifically denied, it does not mean that the limitation gets extended in favour of the plaintiff. Ex. P1 also stipulates that in the event defendant No. 1 fails to execute the sale deed before 15.7.1981., the plaintiff is entitled for penalty of Rs. 30,000/-, assuming that the penalty stipulated in the Ex. P1 is in addition to the execution of the sale, deed, what prevented the plaintiff to sue the defendant No. 1 when he did not execute the sale deed before the date.
31. As far as readiness and willingness on the part of the plaintiff is concerned, since the plaintiff has paid the entire sale consideration to the defendant No. 1, there is nothing for the plaintiff to do anything in the contract. It does not require that the plaintiff to show his readiness, but the readiness and willingness is the mental attitude and the readiness to perform his contract. Though the sale consideration has been paid by the plaintiff, the plaintiffs mental attitude to have the sale deed has to be put in action to show that his willingness was there right from the date of the agreement till the filing of the suit. Plaintiff having stated that he is ready and willing to perform his part of contract, has not led any evidence to show as to what steps he had taken to get the sale deed registered in his favour. The evidence of PW-1 only shows that he was waiting for the embargo to be lifted by the State Government. Even taking into account the alleged embargo alleged to be there till the end of 1998, it is not: known as to why he should wait till 2000 i.e., till the filing of the suit. If the embargo was lifted at the end 1998, the plaintiff should have invoked the jurisdiction of the court for getting the sale deed registered. Unfortunately, the plaintiff not even demanded the registration of the sale deed in his favour immediately thereafter also.
32. As regards to part performance of the contract is concerned, no doubt, Ex. P2 states that the plaintiff was put in possession, of the suit schedule property. Part performance of the contract does not mean that the plaintiff is absolved from other obligations, pail performance only protects the possession of the plaintiff, however, it requires that, the plaintiff should show his readiness and willingness to perform his obligation. Even assuming that the entire payment, is made and there is no obligation on the part of the plaintiff to perform, still the plaintiff cannot wait for 19 years to file the suit In my view, Article 54 requires a demand by the plaintiff and in. case of refusal, the plaintiff gets the cause of action to file the suit, even such demand cannot be made at unreasonable point of time.
33. In this case, what, is required to be noticed is the relationship of the parties. Plaintiff and defendants are none other than the brothers. Plaintiffs admission that the defendant No. 1 was residing in the house is also one of the factors, which is required to be noticed. It is not known as to how the plaintiff has put the defendant No. 1 in possession of the suit schedule property. The explanation offered by the plaintiff in the evidence is that, defendant No. 1 was visiting the plaintiffs house as the mother was not well, visiting the house does not amount to occupying the house. Para-21 of the plaint clearly shows that the defendant No. 1 refused to re-deliver the possession, that means, it is the defendant No. 1 is in possession of the suit schedule property. Even assuming that the defendant No. 1 was visiting the plaintiff's house, it is not known as to how the plaintiff was dispossessed from the suit schedule property. Insofar as dispossession of the plaintiff is concerned, there is no material on record. However, DW-2 in one sentence had admitted that, defendant No. 1 was residing in the house built by the plaintiff. But para-21 of the plaint clearly shows that, plaintiff is not in possession, in turn, it shows defendant No. 1 is in possession. Hence, theory of plaintiff was put in possession m performance of the contract cannot be accepted.
34. As regards to the title to the item No. 2 is concerned, by way of additional evidence, the defendant No. 1 has produced the encumbrance certificate and also a sale deed interalia, showing that item No. 2 properly does not belong to the defendant No. 1. No doubt, the said document is disputed. However, fact remains that the title to the suit item No. 2 property is concerned, it is seriously disputed. As rightly submitted by the learned Counsel for the plaintiff that, even in case of imperfect title, the rights of the plaintiff are not vitiated and plaintiffs right to sue against the defendants either without, title or imperfect title is not taken away and plaintiff can very well exercise that, right. But the said question need not be gone into in this case unless the plaintiff establishes is right, to maintain the suit
35. Apart from the limitation, the second aspect of the matter is, the suit:, for specific performance is a discretionary relief, to be granted based on the facts and circumstances of the case, The fact that the plaintiff has not chosen to demand the registration of sale deed for 19 years, whether at this juncture, granting decree for specific performance is justified. Limitation is prescribed under Article 54 so as to make the parties to sue for specific performance well within time or in a time when cause of action really accrues. Plaintiff having not chosen to exercise his right well within time or even immediately after the alleged embargo is lifted and in view of the relationship of the plain tiff and the defendants, being that of the brothers and the defendant No. 1 being in possession of suit property, coupled with the evidence of DW-2, who is one of the party to the agreement who in his evidence has stated that, in the interest of the family members, he did not file the suit. These circumstances do show that the plaintiff did not choose to file the suit immediately thereafter because of the relationship of the parties and the family interest might have been one of the circumstances, which had prevented the plaintiff from suing. Having not chosen to exercise his right for 19 years, in my view, the suit is barred by time as stipulated under Article 54 of the Limitation Act Even undisputedly the plaintiff has not made demand for registration of the sale deed clearly shows that plaintiff did not choose to file a suit within limitation. The refusal to execute the sale deed gives right to the plaintiff for penalty of Rs. 30,000/-.
36. Even otherwise also, plaintiff admits that defendant No. 1 is in possession of the suit property, in such circumstances, in equity also plaintiff is not entitled for decree. Hence, the decisions relied by the learned Counsel for the plaintiff in support of his case as far as unjust enrichment or the defective title or part performance of the contract may not be required to be gone into.
37. The trial court in decreeing the suit has heavily relied on the evidence of PW-1 in coming to the conclusion that the entire sale consideration having been paid, tire plaintiff has performed his part of the contract and there was an embargo to perform the contract is not disputed by the defendants. On these findings, the trial court has held that the suit is in time. But Article 54 stipulates the cause of action from the date of refusal. In this case, according to the plaintiff, the refusal is the date on which the defendant No. 1 refused to re-deliver the possession. Re-delivery of possession is not the cause of action, the cause of action was for demand of the execution of the sale deed or registration of the sale deed and that gives the cause of action. Not only there is no demand, but waiting for 19 years will not give any rights to the plaintiff to sue for specific performance. Hence the finding of the trial court: on the question of limitation is perse contrary to Article 54 of the Limitation Act. In the circumstances, I find that, the judgment and decree of the trial court is not sustainable in law.
38. However, the agreement Ex. P1 is not disputed by the defendants and the receipt of the amount is also not disputed. Under the Ex. P1, the plaintiff is entitled for penalty of Rs. 30,000/- in the event the defendant falls to register the sale deed. In reading of Ex. P1, it requires that the plaintiff to demand the execution of the sale deed on or before 15th July 1981 and refusal to grant, he will be entitled for Rs. 30,000/-. Taking the circumstances into account, I hold that the plaintiff, who has paid the entire amount, is entitled for refund of amount with penalty as stipulated under the Ex. P1 with interest @ 9% per annum from 15.7.1981.
39. It is brought to my notice that, in response to the application under Order XLI Rule 27 filed by the defendant No. 1, the plaintiff has filed a memo along with two documents, viz., copy of the notice dated 25.10.1999 alleged to have been sent by registered post to the defendant No 1 interalia, demanding the sale of both the items of suit schedule property. Further alleging that plaintiff had arranged for a panchayat and in the said panchayat, a sale agreement, General Power of Attorney and affidavit were executed in his favour on 4.1.1999 by receiving another sum of Rs. 50,000/- and further alleged that thereafter also, defendant No. 1 has not come forward to execute the sale deed and alleged that instead of executing sale deed, the defendant No. 1 has filed a complaint alleging that the documents are stolen. He also produced the alleged reply dated 15.11.1999 wherein the defendant No. 1 has denied the execution of sale agreement dated 4.1.1999, G.P.A. dated 4.1.1999 and affidavit dated 4.1.1999 in respect of suit 'A' and 'B' properties and defendant No. 1 has stated that, he is the owner of both the properties.
40. Though these documents are produced by way of additional evidence, however, for the purpose of the proper appreciation of the case of the plaintiff, they are considered. From the notice dated 25.1.1999, it is clear that the plaintiff alleges that there is an agreement subsequently on 4.1.1999. This fact again establishes that the plaintiff is not seeking the enforcement of agreement, dated 10.9.1980 and the 10.9.1980 agreement has been given go-by in view of the panchayat between, the plaintiff, defendant No. 1 and it is alleged that, subsequently the plaintiff has paid Rs. 50,000/- and has got the agreement on 4.1.1999 and also got the affidavit and the General Power of Attorney. These documents further show that there has been subsequent development between the parties and plaintiff alleges that there is an agreement on 4.1.1999 in respect of the suit schedule property. Looking into these documents, it is clear that, plaintiff has sought for another agreement. It is left for the plaintiff to execute his right, under the said documents. But having produced those documents, it fortifies that the 10.9.1980 agreement was got either modified or got substituted by subsequent agreement dated 4.1.1999 and interestingly there is no reference of any embargo by the Government to execute the sale deed, it only shows that the plaintiff wanted to have his right conferred by another agreement. Hence, I find that the trial court was not justified in decreeing the suit by not considering the limitation, delay, equity and the relationship of the parties. In my considered opinion, the judgment of the trial court is not sustainable in law.
Accordingly, the appeal is allowed. The judgment and decree dated 14.10.2004 passed in O.S. No. 15171/2000 is set aside. If any other right is accrued to the plaintiff in pursuance of the alleged subsequent agreement produced along with memo, the plaintiff is at liberty to work out his remedy in accordance with law.
No order as to the cost.