Karnataka High Court
K. Narayana Reddy vs Ramakrishna Reddy on 21 March, 2005
Equivalent citations: ILR2005KAR2421, 2006(5)KARLJ255
Author: Huluvadi G. Ramesh
Bench: Huluvadi G. Ramesh
JUDGMENT
Huluvadi G. Ramesh J.
1. These appeals are filed under Section 96 of the CPC being aggrieved by the judgment and decree passed by the I Addl. City Civil Judge, Bangalore in OS 2400/1985 dated 4.11.1995.
RFA76671995 is an appeal against the judgment and decree of specific performance passed against the appellant/defendant directing him to execute the sale deed in respect of the suit schedule property in suit bearing No. 18/A measuring 85 ft. East-West, 24+25/ 2 ft. and North-South situate at I phase, Gokul I Stage, Bangalore within three months from the date of the judgment, on payment of the balance consideration after deducting the advance amount paid.
RFA 768/1995 is filed by the appellant/plaintiff being aggrieved by the dismissal of the suit seeking for specific performance against the defendent in respect of the adjacent marginal land to the suit property.
2. The plaintiff's case in brief is that the plaintiff and defendant are co-brothers. On 17.12.1975, both the parties entered into an agreement in respect of the property as noted above, wherein the defendant had agreed to sell the said site along with the marginal land adjacent to it, at the rate of Rs. 13 5/- and Rs. 95/- respectively per square and as per the agreement, defedant had to obtain the necessary certificates by paying layout charges, taxes and other amount to the CITB (now BDA). It was for the defendant to secure necessary possession certificate for the adjacent marginal land before executing the sale deed. At the time of agreement for sale, the plaintiff is said to have paid an amount of Rs. 16,000/- as part of the consideration. Subsequent thereof on 1.6.1976 about Rs. 18,000/- was paid and another Rs. 5,000/- was paid on 6.7.1982 in the presence of some of the witnesses like Govindaraju and other persons. For the subseqent payments there are no receipts. The defendant had undertaken to clear all formalities and to execute the sale deed and also documents in respect of marginal land from the then CITB as stated by him. It is averred that plaintiff was given possession of the suit schedule property on the date of agreement as part performance of the contract. Plaintiff in turn, had leased out the said suit schedule site to one Mohammed Salahia s/o Mohammed Ghouse on 30.5.1977 on execution of rental karar which was said to be attested by the defendant. The plaintiff was collecting the rent from the said tenant. Out of the total amount of consideration, about Rs. 39,000/- was said to have been paid and according to the plaintiff, he was all along ready and willing to perform his part of the contract and was ready to pay the balance consideration and get the sale deed executed in his favour. Further, it is averred that a meeting/panchayat was held demanding the defendant to execute the sale deed prior to the issuance of legal notice on 8.6.1985. Although the plaintiff by issuing a legal notice called upon the defendant to execute the sale deed, neither he replied nor executed the sale deed. Hence, the suit. It is also averred that the cause of action arose on 17.12.1975 and subsequently as and when payments were made and after issuance of legal notice demanding specific performance.
3. Further, during pendency of the suit, the plaintiff also got the plaint amended and averred that defendant was bound in law to obtain necessary possession certificate in respect of the marginal land after paying the necessary charges. Accordingly, he has sought for a direction to the defendant to obtain possession certificate in respect of the marginal land and also to execute the sale deed as undertaken in the agreement.
4. The defendant contested the suit by filing written statement. Although he has admitted the agreement dated 17.12.1975 but, he declined to admit the subsequent payments made. Further, he has also stated that the persons upon whom the plaintiff is relying upon to hold that subsequent payments were made in the presence of persons, are all relatives to the plaintiff and enimical towards him, neither the defendant had delivered possession of the property nor was it let out by the plaintiff to one Mohammed Salahia. Rather, the defendant himself had let out the property to Mohammed Salahia and was collecting the rent and also stated that the time is the essence of contract. The plaintiff has violated the terms of the contract and his suit is barred by limitation as it is filed after nine years of the agreement of sale and the defendant was highly indebted and in order to discharge the debts, he had entered into an agreement of sale with the plaintiff but, the plaintiff who was aware of the fact took undue advantage of the same and got obtained an agreement of sale and despite the defendant ready and willing to perform his part of the contract, the plaintiff did not come forward within the stipulated time to pay the amount and to get the sale deed executed and there is no cause of action. As such, he sought for dismissal of the suit. Further, it is also stated in the amended plaint that he was not bound to obtain necessary possession certificate from the CITB in respect of the marginal land, described in the schedule and also the plaintiff is not entitled for conveyance of the marginal land nor for any such relief of directing this defendant to obtain the necessary possession certificate from the CITB (BDA) and to convey the marginal land in fevour of the plaintiff, as the plaintiff has not discharged his obligations. Further, there is no provision in the BDA Act to enable the BDA to re-convey the sites in favour of the defendant.
5. Based on the above pleadings, following issues and additional issues are framed:
1. Whether the plaintiff proves that he paid a sum of Rs. 18,000/- on 1.6.1976 and Rs. 5,000/- on 6.7.1982 to the defendant in addition to the payment of Rs. 16,000/-on 17.12.1975 towards part of the sale consideration?
2. Whether the plaintiff proves that he has been in possession of the suit schedule property in part performance of the contract of sale?
3. Whether the plaintiff proves that he has been always ready and willing to perform his part of the contract?
4. Does the defendant prove that the time is the essence of the contract?
5. Whether the defendant proves that he is in possession of the suit property and let out the same to the tenant Mohammed Saleha?
6. Whether the defendant proves that the contract has been terminated?
7. Is the plaintiff entitled to the reliefs of specific performance and permanent injunction sought for?
8. What decree or order?
Addl. Issues:
1. Whether defendant proves that this suit is barred by limitation?
2. Whether the plaintiff proves that obtaining of possession certificate from the CITB (BDA) in respect of margin land described in the suit schedule by the defendant was a must to get sale deed as per the suit agreement of sale deed dated 17.12.1975?
On behalf of the plaintiff, four witnesses were examined and five exhibits were got marked and on behalf of the defendants, he himself got examined and as many as five exhibits are got marked. Having heard both sides, the court below answered issued 1,2,3 and additional issued No. 2 in the affirmative while answering issue Nos. 4, 5, 6 in the negative, thereby, decreeing the suit in part and directing the defendant to execute a sale deed in respect of the suit site bearing 18/A measuring 85 ft x24+25/2 ft. within three months from the date of the judgment. It was also further decreed that the plaintiff shall pay the balance consideration excluding the amount already paid and also to bear the expenses of registration and stamp paper with a direction to the defendant to intimate the date within three months to execute the saledeed. However, the suit of the plaintiff inrespect of the adjacent marginal land was dismissed.
Being aggrieved by the same, the defendant has preferred an appeal in RFA. 766/1995 and sought for setting aside the judgement and decree dated 4.11.1995 in OS 2400/1985 passed by the I Addl. City Civil Judge, Bangalore on various grounds.
The plaintiff also preferred RFA 768/1995 being aggrieved by the judgment of the City Civil Court in rejecting his claim in so far as the marginal land adjacent to the suit land and has prayed for allowing the appeal and to direct the defendant to convey the marginal land by setting aside the finding of the Trial Court (judgment and decree) to the extend of rejecting the claim of the plaintiff in so far as marginal land is concerned.
6. Heard the counsel representing the plaintiff and the defendant. As a matter of convenience, parties arc referred according to their ranking in the court below.
If is the submission of the learned counsel for the defendant who is the appellant in RFA 766/1995 that, although the agreement is dated 17.12.1975 wherein one month's time was given to get the sale deed executed, the plaintiff has not come forward to perform his part of the obligation. He was never ready and willing to perform his part of the contract. The conduct of the plaintiff that he did not file the suit till 1985 shows that the plaintiff was not willing to get the sale deed executed and he never made payment subsequent to the agreement. In order to suit: his convenience, he has come up with a false plea that there being no cogent evidence, the subsequent payments made on 1.6.1976 and 6.7.1982 are made up to cover up the limitation and the suit is filed beyond the period of limitation, and the plaintiff has relied upon some of the witnesses who are close friends to prove the subsequent payments who arc inimical to the defendant. Further, when time was the essence of the contract, the plaintiff should have come forward to get the sale deed executed immediately within one month from the date of agreement. Neither the plaintiff expressed his willingness nor did he come forward with the remaining amount to get the sale deed executed. He further submitted that there is no obligation, on the part of the defendant to execute the sale deed in respect of the marginal land nor he has to approach the concernet authorities seeking necessary certificates in respect of the marginal land. Accordingly he submitted that as the suit is hopelessly barred by limitation, the impugned judgment and decree passed in favour o f the plaintiff has to be set aside. In support of his argument, learned counsel for the defendant has relied upon decisions to contend that time is the essence of contract and also that Part I of Article 54 of the Limitation Act applies and not Part II. There is no demand and refusal to avail the benefit of Article 54 Part II before the expiry of 3 yrs. The finding of the Trial Court is contrary to the settled position of Saw and accordingly, has submitted that the appeal be allowed. Learned counsel also relief on several citations which will be dealt with in the course of the order.
7. On behalf of the plaintiff, it is submitted that the Trial Court is perfectly justi lied in passing the decree in favour of the plaintiff as time was not the essence of contract. Although there is delay in filing the suit, such lapse was due to the fault on the part of the defendant since he did not secure necessary certificate from the CITB (BDA) and also he did not come forward by accomplishing the duty on his part viz., the payment of tax and other charges and also obtaining the certificate to enable him to execute the sale deed and also as undertaken by him, he did not obtain any permission or certificate from the then CITB so far as marginal land to the suit property so as to execute the sale deed in favour of the plaintiff as per the agreement within one month and that as per the condition in the agreement Ex. P1, it was for the defendant to make necessary arrangements and thereafter, for the plaintiff to approach for the execution of the sale deed. Since the defendant did not intimate as to his readiness to execute the sale deed although all along the plaintiff was ready and willing to perform his part of the contract by paying substantial amount, the defendant went on postponing on one or the other pretext. Accordingly, he submitted that the time was not the essence of the contract and Article 54(2) of the Limitation Act applies. The plaintiff has made payment from time to time and also has taken possession of the property from the defendant in part performance of the agreement and that subsequently, the suit property was let out to one Mohammad Salahia for which the defendant is also a signatory. Although the plaintiff has issued legal notice to the defendant neither it has been replied nor the sale deed was executed and few days prior to the issuance of legal notice, there was a panchayat held and in that panchayat, defendant some how did not express his willingness to perform his part of the obligation. Accordingly, he submitted that the Trial Court has rightly decreed the suit. Further, in support of his argument, he also relied upon the decision in SMT CHANDRANI (DEAD) BY LR'S v. SMT KAMAL RANI (DEAD), and also another decision of this Court in H.M. KRISHNA REDDY v. H.C. NARAYANA REDDY, 2001 (5) KLJ 204 to contend that a suit for enforcement of a contract of sale has to be fild within three years from the date of notice demanding execution of sale deed and if the same was not favourably responded by the other party, in such circumstances, the suit is held to be not haired by limitation.
8. In view of the above submission, the following points arise for consideration.
1. Whether the Trial Court is justified in holding that the plaintiff has proved the subsequent payments made Rs. 18,000 on 1.6.1976/-; Rs. 5,000/- on 6.7.1982 to the defendant in addition to the payment made during the time of agreement on 17.12.1975 for Rs. 16,000/- towards sale consideration?
2. Whether the Trial Court was justified in holding that time was not the essence of contract?
3. Whether the Trial Court is justified in holding that the plaintiff was in possession of the suit schedule property in part performance of the sale agreement?
4. Whether the Trial Court was justified in holding that the plaintiff was ready and willing to perform his part of the contract?
5. Whether the Trial Court is justified in holding that the defendant failed to prove his possession subsequent to the sale agreement and that he has not let out the same to one Mohammad Salahia?
6. Whether the Trial Court is justified in holding that the defendant failed to prove that the contract has been terminated?
7. Whether the Trial Court was justified in holding that it was necessary to obtain certificate from the CITB in respect of the marginal land by the defendant and the same is proved by the plaintiff?
8. Whether the Trial Court is justified in holding that the suit is not barred by limitation?
9. Whether the judgment and decree passed by the Trial Court suffers from any error or illegality which calls for interference?
9. As per the stipulations in the agreement to sell entered into between the parties, the defendant who is the owner of the suit schedule property brearing CITB No. 18 A which is said to be, measuring about. 85 ft East West and 24+25/2. North South to be sold at the rate of 135 per sq. yard. It is also stated that there is a marginal land measuring 30 ft East West and 40 ft North-South adjacent to the suit land. The same has been agreed to be conveyed at the rate of Rs. 95 per sq.yard. It is stated on the date of agreement an amount of Rs. 16,000/- was paid in the presence of the witnesses. Out of the two lands noted above, the defendant had agreed to pay all layout charges, taxes in respect of the marginal land and also to obtain possession certificate and also in connection with both the items, he will get the sale deed from the CITB and agreed to execute the sale deed in favour of the plaintiff. Regarding the expenses incurred towards sale deed by the CITB, both the parties agreed to bear the expenses.
Further, it was also agreed that the palintiff has to come with the remaining amount excluding the advance amount paid, within one month and to intimate the defendant/vendor and that the vendor/ defendant will get the sale deed executed at the cost of the purchaser before the Sub-Registrar by collecting the balance amount in the presence of the Sub-Registrar. Meanwhile (within the said period), the vendor will pay the layout charges in respect of the marginal land, secure the possession certificate and will execute the sale deed.
In the alternate, it is stated that within the said period, if the vendor does not come forward to execute the sale deed due to any reasons despite the purchaser coming forward with the remaining balance of the sale consideration, the purchaser is entitled to claim damages. In the event the plaintiff does not come forward with the remaining sale consideration within the said period, the purchaser himself is responsible for any loss caused to him.
Looking into Ex. P1 - the agreement to sell, it does not depict the fact about delivery of possession to the plaintiff. The plaintiff although has stated that possession was given to him at the time of sale agreement, no cogent material is produced in this regard except the oral evidence of himself and other witnesses. Further, the plaintiff has relied on Ex. P2 which is said to be the lease-cum-rent note wherein the property is said to be delivered to one Mohammed Saleha for which the defendant is the signatory. It is seen that although the delivery of possession is said to be given by the plaintiff-Ramakrishna Reddy to Mohammed Saleha as per Ex.P2 and its contents, the plaintiff is not a signatory for such lease-cum-rent note. The only thing that would envisage is that the defendant is the signatory to the last page of Ex. P2 which consists of three pages although, according to the plaintiff, he has taken possession of the property and in turn let out the same to PW 3- Mohammed Saleha. It is the contention of the defendant that the document Ex.P2 is concocted. In the absence of any such signature by the plaintiff, the very contention of the plaintiff and also the evidence of P W 3 in this regard that the defendant himself negotiated on his behalf with PW 3. and as contended by the defendant himself, for all practical purposes, it has to be held that the possession was given by the defendant to PW 3 - Mohammed Saleha. This is just because the possession was neither given to the plaintiff at the time of sale agreement nor it is evident from the sale agreement regarding possession given by the defendant to the plaintiff although it is recited in Ex. P2 that possession is taken from the plaintiff. As contended by the defendant, it is he who has given possession to PW 3- Mohammed Saleha and the same has to be accepted despite the evidence of plaintiff and PW 3 - Mohammed Saleha. In view of the above discussion, it has to be held that the plaintiff has failed to prove that he was in possession of the suit schedule property in part performance of the agreement of sale. The observation of the Trial Court is only based on the plaintiff's oral evidence and cannot be accepted to hold that the possession of the suit property was given to the plaintiff in part performance of the agreement to sell. As such, the finding of the Trial Court being erroneous, the finding on this issue requires to be interfered with. Even it is seen that the sale agreement is dated 17.12.1975 and Ex. P2- lease deed in favour of Mohammed Saleha is said to be 1.5.1977 i.e., nearly after 1 1/2 years, lease of the suit property came to be executed in favour of Mohammed Saleha. The contention of the defendant that he had let out the property to Mohammed Saleha and that Mohammed Saleha was paying rent to him till the end of May 1995 has to be accepted. Although it is stated by Mohammed Saleha that the plaintiff had given him possession, except the oral evidence of the plaintiff himself and PW 3 - Mohammed Saleha, there is nothing to show the delivery of possession by the plaintiff to Mohammed Saleha. Although it is stated in Ex. P2 that the delivery of possession was given by plaintiff to Mohammed Saleha, the contention of the defendant has to be accepted that the document was concocted obtaining the signature of defendant in view of the enmity suggested between the plaintiff and the defendant. Thus, mere proving the signature of the defendant on Ex. P2 will not establish the fact that the contents of Ex. P2 as true unless the surrounding circumstances are cogent enough to hold that there was delivery of possession from the plaintiff to Mohammed Saleha. In view of the above discussion, the finding of the Trial Court on issue 2 and 5 has to be reversed holding that the plaintiff has failed to prove that he was in possession of the suit property in party performance of the contract of sale and he let out the same to Mohammed Saleha. Accordingly, it is reversed.
10. The Trial Court has answered issue 1 in the affirmative which requires re-appreciation. The payment of Rs. 16,000/- as on the date of the sale agreement dated 17.12.1975 is not disputed. Undisputedly the sale agreement is a written agreement. In support of this contention, the plaintiff has stated that he had also paid a sum of Rs. 18,000/-on 1.6.1976 and another sum of Rs. 5,000/-on 6.7.1982 and thereafter, has demanded for execution of the sale deed. Further, it is seen in para 4 of the evidence of PW1 that, after making all these payments, he requested the defendant to execute a registered sale deed but, between January 1976 till last payment said to be made on 6.7.1982 to the defendant, there is no demand by the plaintiff, Much less within three years after one month from the date of the agreement there is no demand and refusal. It is stated in the agreement that within one month from the date of the agreement, plaintiff had to approach the defendant with the balance consideration seeking for execution of sale deed. Although the fact of payment made is said to be evidenced by other witness namely, Govinda Reddy-PW 2, it is pertinent to note that there is no endorsement on the sale agreement regarding subsequent payment made. Although oral evidence is led in stating that plaintiff could not obtain receipts because the defendant and himself were related to each other, the plaintiff could have secured receipts or else endorsement for payment when there exists a written sale agreement. Under these circumstances, and also when it is disputed that subsequent payments were made by the plaintiff, it cannot be accepted that such payments were made in the absence of any cogent proof in this regard. As such, the so called subsequent payments said to have been made by the plaintiff that too, the 2nd payment in the year 1982, although cannot be accepted and it is found to be made beyond three years from, the date of the sale agreement entered into. Further there is no demand and refusal immediately within three years after lapse of one month from the date of the agreement. Further, in the instant case, the plaintiff is said to have issued a legal notice in the year 1985, which is much beyond the period of limitation or even assuming that time is not the essence of contract, he did not come forward to seek relief of specific performance within reasonable time. In the decision , it is held thus:
In the case of sale of immovable property there is no presumption as to time being the essence of contract. Even if it is not of the essence of the contract, the court may infer that it is to be performed i n a reasonable time if the conditions are: (1) from the express terms of the contract: (2) from the nature of the property: and (3) from the surrounding circumstances, for example: the object of making the contract.
Further, Section 18 and 19 of the Limitation Act, 1963 reads thus:
S. 18 Effect of acknowledgement in writing:
1. Where, before the expiration of the proscribed period for a suit of application in respect of any property or right, an acknowledgement of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgement was so signed.
2. Where the writing containing the acknowledgement is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received.
Explanation: For the purposes of this Section -
a. an acknowledgement may be sufficient through it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set off, or is addressed to a person other than a person entitled too the property or right;
b. the words 'signed' means signed either personally or by an agent duly authorised in this behalf, and c. an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right.
8.19: Effect of payment on account of debt or of interest on legacy:
Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised in this behalf, a fresh period of limitation shall be computed from the time when the payment was made: Provided that, save in the case of payment of interest made before the 1st day of January 1928, an acknowledgement of the payment appears in the handwriting of, or in a writing signed by, the person making the payment.
Explanation: For the purposes of this Section.-
a. Where mortgaged land is in the possession of the mortgages, the receipt of the rent or produce of such land shall be deemed to be a payment;
b. 'debt' does not include money payable under a decree or order of a Court.
In view of the above legal position, to extend the period of limitation of three years for the payment said to have been made by the palintiff to the defendant subsequent to the date of the agreement, there should have been a specific endorsement on the sale agreement to see that further fresh period of limitation runs from the subsequent payment. In the absence of any such endorsement, mere oral evidence would not be of any help to the plaintiff to prove his subsequent payments made and also to bring the suit within the period of limitation. As per Article 54 of the Limitation Act, in the absence of any cogent proof as to the payment and acceptance of subsequent payments, in the instant case time begins to run after one month from the date of the agreement before expiry of three years from the said one month. There should have been a demand and refusal before expiry of three years after one month after the agreement, although suit is not filed within three years. Article 54 of the Limitation Act, reads thus:
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Description period of Time from which of suit limitation period begins to run
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54. For specific three years The date fixed for the performance of performance, or if no a contract such date is fixed, when the plaintiff has notice that performance is refused.
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In the instant case, as noticed, specifically the suit is barred by limitation. As such, the finding of the Trial Court that the suit was filed well within the period of limitation has to be negated and accordingly it is reversed. As regards the evidence of the appellant that he made subsequent payments during 1976 and thereafter during 1982 in a sum of Rs. 18,000/- and 5,000/- respectively, there is no document to establish the same, except the oral evidence of the plaintiff and other witnesses. In so far as the say of the plaintiff that subsequent to such payments made by him, he demanded for execution of the sale deed, the conduct of the plaintiff that he went on making payments subsequently even according to him at a gap of one year and after a gap of another eight years depicts that he was not ready and willing to perform his part of the contract and also that in the absence of cogent evidence to show that between 1976 to 1982 or much less till 1985 when he came to issue notice to the defendant, there is said to be no demand and refusal by him. Under these circumstances, it is suffice to hold that the plaintiff had not made up his mind till 1982 to get the sale deed executed nor was he ready and willing to perform his part of the contract and suit is barred by limitation. Further plantiff failed to prove by cogent evidence be made subsequent payments etc. Hence, the finding of the Trial Court on issue 1, 3 and Addl. issue 1 has to be reversed and is accordingly reversed.
11. The Trial Court while answering issue 6 has held that the defendant although had entered into an agreement of sale on 17.12.1975, he did not even issue notice about his intention to terminate the agreement of sale and on that count has held that the defendant had failed to prove that the contract has been terminated. It has to be noted in this regard when the plaintiff himself has not come forward to perform his part of the obligation either by way of issuing a legal notice seeking for execution of the sale deed or made any demand seeking for execution of the sale deed before the expiry of three years as required under Article 54 of the Limitation Act, the contract is deemed to have been terminated. As such, question of proving the termination of the contract on the part of the defendant does not arise. As such, the finding given by the Trial Court on that issue is negated. The finding of the Trial Court that time is not the essence of contract may have to be reversed in view of the fact that in Chand Rani's case cited supra, in similar circumstances it is held that time is the essence of contract. Further, in the instant case also, stipulation of one month is mentioned in the agreement and it was for the plaintiff to come forward to get the sale deed executed with the remaining amount having regard to the urgency pleaded by the defendant or else he would have issued a | legal notice. The conduct of the plaintiff shows that he approached the defendant only after making subsequent payment in the year 1982 and beyond reasonable time which clearly goes to show that he was not ready and willing to perfom his part of the contract although time was the essence of the contract and one month time had been stipulated at least, in so far as the suit schedule land though it was not possible for the marginal land as there was no title available to the defendant to execute the same in favour of the plaintiff.
12. In the sale agreement, there is an averment to the effect that the defendant has to obtain possession certificate in respect of the marginal land from the then CITB (BDA) and that the defendant did not obtain any such certificate from the authority to get the sale deed executed in so Jar as marginal land is concerned. In the cross-appeal filed by the plaintiff-appellant seeking for judgment and decree in his favour by setting aside the finding of the Trial Court on that issue, it is seen that the Trial Court referring to the ratio laid down in the ease of Annapoorna Animal v. G. Thaugappalum, has held that the decree cannot be passed against the defendent in respect of the marginalland as the defendant had no subsisting interest nor any right for the marginal land at the time of agreement and thereafter. 31. is also noted that the marginal land was not allotted to the defendant by the CITB as such, the same cannot be en forced. While upholding the finding of the Trial Court on this aspect, it has to be held that the Trial Court has rightly rejected the prayer of the plaintiff seeking for judgment and decree to convey the marginal land as well to the plaintiff. The prayer of the plaintiff appellant in the cross appeal cannot be considered for the above said reason and also for the reason that the suit is barred by limitation.
13. Since it is held that suit is barred by limitation by negating the finding of the Trial Court and also that it is held that the plaintiff was not ready and willing to perform his part of the contract, while reversing the finding of the Trial Court, it has to be held that the suit of the plaintiff cannot be decreed. As such, the finding of the Trial Court has to be reversed. 1 he Trial Count t of course, has rightly rejected the prayer of the plaintiff in so far as marginal land and it does not require interference. In view of the ratio laid down by the Apex Court in Chand Rani's case, having noticed that the plaintiff did not at all come forward to perform his part of the obligation within a reasonable time and that there was no readiness and willingness on the part of the plaintiff, the suit of the plaintiff has to fail.
In view of the above detailed discussion, the appeal (RFA 766/1995) filed by the defendant is allowed by setting aside the judgment and decree dated 4.11.1995 in OS 2400/1985. The appeal (RFA 768/1995) filed by the plaintiff seeking for judgment and decree in so far as marginal land is dismissed. Having regard to the facts and circumstances of the case, the defendant shall return the earnest money of Rs. 16,000/- paid by the plaintiff as per the agreement with 12% interest from the date of payment till payment. In the circumstances of the case, parties to bear their own costs.