Himachal Pradesh High Court
Sat Pal And Others vs Shri Lachhi Ram And Another on 9 July, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 296 of 2006
Reserved on: 27.05.2015
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Date of decision: 09.07. 2015
____________________________________________________________________
Sat Pal and others
......Appellants.
Vs.
Shri Lachhi Ram and another .....Respondents.
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Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge
Whether approved for reporting?1 Yes.
For the appellants : Mr. Ramakant Sharma, Advocate.
For the respondents: Mr. G.D. Verma, Senior Advocate with
Mr. B.C. Verma, Advocate, for
respondent No. 1.
Nemo for respondent No. 2.
Rajiv Sharma, J.
This Regular Second Appeal is directed against the judgment and decree, dated 24.04.2006, passed by the learned District Judge, Solan, H.P. in Civil Appeal No. 73-S/13 of 2005.
2. Key facts necessary for the adjudication of this Regular Second Appeal are that respondent No. 1-plaintiff (hereinafter referred to as "the plaintiff" for the sake of convenience) filed a suit for specific performance of contract, dated 18.07.1991, Ex.-P8. The sale consideration was `3000/-. The plaintiff paid a sum of `2050/- as Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 15/04/2017 18:32:38 :::HCHP 2advance to the defendant No. 1, Sh. Sita Ram (hereinafter referred to as 'the defendant" for the sake of convenience) in the presence of respectable witnesses at the time of execution of the agreement and .
the balance amount `950/- was agreed to be paid at the time of registration of the sale deed in the month of October, 1991. Plaintiff issued a notice, dated 24.11.1996 to the defendant No. 1 by a registered post to execute the sale deed in favour of the plaintiff. The defendant No. 1 failed to execute the sale deed. Plaintiff approached the Patwari Halka on 30.11.1996 to prepare the revenue papers for registration of sale deed. On inquiry, it was found that defendant No. 1 had already sold the land to appellants-defendants, namely Sat Pal, Rakesh Kumar and Tilak Raj by way of sale deed No. 112, dated 04.03.1996.
3. The suit was contested by the defendants. The defendant No. 1 has filed a separate written statement. The allegations contained in the plaint were denied. The issuance of notice was also denied. A specific ground was taken that the suit was filed after five years of the execution of the agreement and, thus, it was barred by limitation. The sum and substance of the stand taken by the defendants No. 2 to 4 was that they were bonafide purchasers of the land by way of registered sale deed No. 112, dated 04.03.1996.
4. Replication was filed by the plaintiff. The learned Civil Judge (Senior Division) Kasauli, District Solan, H.P. framed the issues on 25.08.1999. The suit was dismissed by the learned Trial Court on 03.09.2005.
::: Downloaded on - 15/04/2017 18:32:38 :::HCHP 35. Plaintiff filed an appeal before the learned District Judge, Solan, H.P. He allowed the same on 24.04.2006. Hence this Regular Second Appeal.
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6. This Regular Second Appeal was admitted on the following substantial questions of law on 17.05.2007:
1. Whether the learned lower appellate Court has misread as well as misconstrued the agreement to sell Ex. P8, dated 18.7.1991?
2. Whether the impugned judgment and decree is the result of complete misreading, misinterpretation as well as mis- appreciation of the provisions of Article 54 of Limitation Act?
3. Whether the learned lower appellate Court was right in holding the suit to be within limitation which suit has been admittedly filed after more than three years from the date fixed in the agreement for execution of sale deed and the suit having been filed on 27.12.1996?
4. Whether the learned lower appellate Court was right in not considering the admission made by the plaintiff while appearing as PW-2 admitting that the sale deed was to be executed on 15.10.1991?
5. Whether the learned lower appellate Court was right in holding that the appellants are not bonafide purchasers more particularly when it stood proved by way of evidence of one of the appellants DW-2 Tilak Ram and another witness DW-3 Asa Ram vis-à-vis the admission of PW-2 that time was an essence of the contract and the appellants had no notice of the earlier agreement?
6. Whether the impugned judgment and decree is the result of non-consideration of Ex. PX the sale deed executed by the respondent No. 2 in favour of the appellants, dated 04.03.1996?::: Downloaded on - 15/04/2017 18:32:38 :::HCHP 4
7. Mr. Ramakant Sharma, learned counsel for the appellants has supported the judgment and decree, dated 03.09.2005, passed by .
the learned Trial Court. He also contended that the First Appellate Court has misread the agreement to sell, Ex.-P8, dated 18.07.1991.
According to him, the suit was barred by limitation. His clients were bonafide purchasers of the suit land.
8. Mr. G.D. Verma, learned Senior Advocate has supported the judgment and decree, dated 24.04.2006, passed by the learned First Appellate Court.
9. Since all the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid the repetition of discussion of evidence.
10. PW-1 Sh. Manohar Lal has proved the summons Ex.-P1 issued during the course of consolidation proceedings. PW-2 Sh. Lachhi Ram deposed that the suit land was never partitioned. An agreement was prepared and a sum of `3000/- was the consideration. A sum of `2050/- was paid to the defendant Sh. Sita Ram and rest of the amount was to be paid at the time of registration of the sale deed in the month of October. However, the sale deed was not got registered by the defendant. He came to his house in the evening in the month of October and told that his son was sick. Plaintiff paid him `950/-. He prepared the receipt, but the defendant told him that he would get it prepared later on. However, despite this, the sale deed was not registered. Notice was served upon the defendant vide Ex.-P4.
::: Downloaded on - 15/04/2017 18:32:38 :::HCHP 511. PW-3 Sh. Shyam Lal deposed that an agreement was entered into between the parties vide Ex. P8. The total consideration was `3000/-. Sita Ram (defendant) went to the plaintiff and told him .
that his son was ill. He was in dire need of money. He alongwith Sita Ram and Gita Ram went to the house of plaintiff. The plaintiff paid a sum of `950/- to the defendant Sita Ram. Nothing was reduced into writing in their presence. However, defendant No. 1 told him that he would get the sale deed registered.
12. PW-4, Sh. Khushal Chand deposed that the defendants never remained in possession of the suit land. PW-5 Sh. Liaq Ram corroborated the statement of PW-4 qua the possession.
13. Defendant No. 1 Sh. Sita Ram has led his evidence by way of an affidavit Ex. DW1/A. He admitted that an agreement was entered into between him and the plaintiff on 18.07.1991 for a consideration of `3000/-. A sum of `2050/- was paid to him on that date, whereas rest of the amount, i.e., `950/- was to be paid at the time of registration of sale deed. The sale deed was to be got registered by 15th October, 1991.
He sold the land to defendants vide registered sale deed No. 112, dated 4.3.1996. He was in possession of the suit land. In his cross-
examination, he admitted that he had gone to meet the plaintiff at Parwanoo and at village Thandu. He has denied the suggestion that he has told the plaintiff that his son was ill and he asked for `950/-. He denied that Shyam Lal and Gita Ram were with him. He never told the ::: Downloaded on - 15/04/2017 18:32:38 :::HCHP 6 plaintiff to get the sale deed executed. The plaintiff has paid him `2050/-, but `950/- were not paid within the period of limitation.
14. DW-2 Sh. Tilak Raj has also led his evidence by way of an .
affidavit Ex. DW2/A. He deposed that he has purchased the land alongwith his brother from Sita Ram in the year 1996. In his cross-
examination, he has admitted that he has verified the status of the land before buying the same. He denied the suggestion that no money was paid to Sita Ram by him.
15. DW-3 Sh. Asha Ram has also led his evidence by way of an affidavit Ex. DW3/A. He deposed that the suit land was purchased by Sat Pal, Rakesh Kumar and Tilak Raj from Sita Ram in the year, 1996.
16. Paragraph-2 of agreement, dated 18.07.1991 Ex.-P8 reads thus:
"WHEREAS the 1st Party is the joint owner in possession of the landed property measuring 2 bighas situated in village Manj, Pargna Basal, Tehsil Kasauli, District Solan, H.P., which falls in my share, has agreed with the purchase for the sale of `3000/- (Rupees Three thousand only) out of which the sum of `2050/- (Rupees Two thousand and fifty only) as an advance and the balance amount of `950/- will be paid at the time of execution the sale deed in favour of the purchaser, by the middle of October, 1991."
17. According to the plain language employed in paragraph No. 2, the total consideration was `3000/-. A sum of `2050/- was to paid in advance and the balance amount of `950/- was to be paid at the time of execution of the sale deed by the defendant in the middle of October, ::: Downloaded on - 15/04/2017 18:32:38 :::HCHP 7 1991. A notice has been issued by the plaintiff to the defendant No. 1 on 24.11.1996. The execution of the agreement, dated 18.07.1991 is not in dispute.
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18. Mr. Ramakant Sharma, learned counsel for the appellants has vehemently argued that the suit was to be filed within a period of three years from 15th October, 1991. However, the suit was instituted on 27.12.1996.
19. Mr. G.D. Verma, learned Senior Advocate for respondent No. 1 has vehemently argued that after receiving a sum of `950/-, the defendant No 1 had agreed to execute the sale deed, thus, the period stood enlarged and the time could not be said to be the essence of the contract.
20. PW-1, Sh. Lachhi Ram has deposed that the defendant No. 1 Sita Ram came to his house and told him that his son was sick and, thus, he was in dire need of money. He paid a sum of `950/- to him.
However, no receipt was prepared at that time. Similarly, PW-3 Sh.
Shyam Lal deposed that the defendant No. 1 had visited the house of plaintiff and told him about the sickness of his son and a sum of `950/-
was paid to him. He has deposed categorically that nothing was reduced into writing in his presence. The defendant No. 1 while appearing as DW-
1 has admitted that though he had visited the house of the plaintiff, but had never asked for any money for treatment of his son. He also denied specifically that PW-3, Sh. Shyam Lal or Gita Ram was with him at that time. In case a sum of `950/- was paid by the plaintiff to defendant No. ::: Downloaded on - 15/04/2017 18:32:38 :::HCHP 8 1, he should have definitely obtained receipt, more particularly when he was eager to get the sale deed registered. The suit has been filed after a period of five years of the execution of the agreement. The defendant No. .
1 sold the land to defendants No. 2 to 4 by a registered sale deed No. 112, dated 04.03.1996. Since the agreement to sell was not registered, the defendant No. 1 was within his right to sell the land to defendants No. 2 to 4 by way of registered sale deed. It has come on record that the defendants No. 2 to 4 before purchasing the land had ascertained the title of the suit land. The mutation was also attested in favour of defendants No. 2 to 4 after registration of sale deed No. 112.
21. PW-1, Sh. Manohar Lal has proved the issuance of summons Ex.-P1 during consolidation proceedings. A specific portion has been delivered to defendants No. 2 to 4 during consolidation proceedings.
Learned Trial Court has come to the right conclusion that the land was not in exclusive possession of the plaintiff and the First Appellate Court without giving any cogent reasons has reversed the findings qua possession. It cannot be said that the defendants No. 2 to 4 were not bonafide purchasers of the suit land. The learned First Appellate Court had come to a wrong conclusion that the plaintiff had paid a sum of `950/- to defendant No. 1 at his own. PW-5 Sh. Liaq Ram did not know the Khasra numbers of the suit land. His land was situated at a distance of 3 kms. From village Dandhu. He was not aware even about the agreement. Thus, he could not guide the defendants No. 2 to 4 whether the suit land already stood sold by defendant No. 1 to the plaintiff.
::: Downloaded on - 15/04/2017 18:32:38 :::HCHP 922. PW-6 Sh. Nank Chand has admitted in his cross-examination that he was not a witness to the agreement to sell Ex. P8, dated 18.7.1991. According to revenue record, Sita Ram was in possession of .
the suit land. Learned First Appellate Court has not correctly appreciated the agreement to sell Ex. P8, dated 18.07.1991. The suit was barred by limitation. The defendants No. 2 to 4 were bonafide purchasers of the suit land. The period of limitation started from 15th October, 1991 and the same could not be stopped by paying balance amount of `950/- after the period of limitation was over.
23. In Chekka Venkata Suryanarayana Murthy Vs. Appana Veerraju and another AIR 1980 Andhra Pradesh 32, the Division Bench has held that in applying statutes of limitation equitable considerations are out of place, strict grammatical meaning of the words is the safeguide. The Division Bench has held as under:
"10. Lord Hobhouse in Mussamat Basso Kuar v. Lala Dhun Singh (1887-88 ) 15 Ind App 211 at p. 218 (PC) propounded a somewhat similar theory:-
"It would be an inconvenient state of the law if it were found necessary for a man to institute a perfectly vain litigation under peril of losing his property if he does not. Ahd it would be a lamentable state of the law if it were found that a debtor, who for years had been insisting that his creditor shall take payment in a particular mode, can, when it is decide that he cannot enforce that mode turn round and say that the lapse of time has relieved him from paying at all"
But, the supreme court in Siraj- UI- Hag V. S. A. Board of waqf held the observation biter and adopted the dicta laid in ::: Downloaded on - 15/04/2017 18:32:38 :::HCHP 10 Nagendra Nath Dey v. Suresh Chandra Dey ((1932) 59 Ind App 283) (PC0 viz., "equitable considerations are out of place, strict grammatical meaning of the words is the safe guide."
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24. In Baruna Giri and others Vs. Rajakishore Giri and others, AIR 1983 Orissa 107, the Division Bench has held that under Article 54 of the Limitation Act, the limitation for specific performance of a contract is three years and limitation is to be counted from the date fixed for the performance, or, if no such date is fixed when the plaintiff has notice that performance is refused. The Division Bench has held as under:
"9. The next contention is that the possession of the defendants became adverse from the date when their right to sue for specific performance of the contract became barred by limitation. Under Article 54 of the Limitation Act the limitation for specific performance of a contract is three years and limitation is to be counted from the date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. It is alleged that the statement of Siropani Giri in his petition dated 16-2-1947 (Ext.
A-2) amounted to a denial of the contract and from that date the defendants got notice of the refusal of performance and their right to sue for specific performance became barred three years after 16-2-47, that is to say 16-2-50. It is contended that the possession of the defendants became adverse to the plaintiffs from 16-2-1950 and the present suit having been filed on 21-12-1967 it should be held that the defendants had acquired title by adverse possession. Reliance is placed on the decision in Shiv Kumar v. Ajodhia Nath, AIR 1972 J & K 125 (FB) wherein it was observed as follows :--::: Downloaded on - 15/04/2017 18:32:38 :::HCHP 11
"......Where the time for specific performance of the agreement to sell runs out, the possession of the defendant becomes adverse and, if the vendor allows 12 years to pass from this date then the possession of the .
defendant would ripen into title by prescription."
We find ourselves unable to accede to the contention that permissive possession of the defendants was converted into adverse possession merely because their right to sue for specific performance became barred. In the first place it was for the defendants to plead and prove how and from what time their possession which was initially permissive changed its character and became adverse. Unless the plea is specifically raised in the pleading, it cannot be allowed to be flung as surprise on the plaintiffs for the first time in appeal. Neither there is any averment in the written statement nor any evidence has been adduced to show when the defendants for the first time noticed or realised that the plaintiffs were not willing to execute and register the sale-deed. The contention that on 16-2-1947 the defendants got notice of refusal of performance is inconsistent with the case pleaded, in the written statement. The allegations made in paragraphs 4 and 13 of the written statement were to the effect that the defendants and their forefathers were in possession of the suit lands adversely to the plaintiffs since the date of contract, that is 23-3-36. Secondly, the defendants were entitled to retain possession under Section 53-A of the Transfer of Property Act even though their right to sue for specific performance was barred or the contract became otherwise unenforceable. See AIR 1957 Andh Pra 58 (K. Venkattasubbayya v. K. Rosayya) and AIR 1955 Hyd, 101 (Jahangir Begum v. Gulam Ali Ahmed). The Sight of defence under Section 53-A is Mot lost even though the right to enforce the contract was barred. There ::: Downloaded on - 15/04/2017 18:32:38 :::HCHP 12 is no bar of limitation to a defence. When the right to retain possession exists the owner is not called upon to take any step towards putting an end to it. Hence no presumption arises against him from his acquiescence, nor does the possession .
become adverse. It is to be noted in this connection that Section 53-A of the Transfer of Property Act is not applicable to the State of Jammu and Kashmir. Thirdly, the possession of the defendants being clearly permissive and, not antagonistic to the plaintiffs it will be so presumed until the contrary is proved by clear and convincing evidence. There is no material on the record to show that the defendants abandoned the idea of possessing the land in pursuance of the contract and asserted a hostile title. There is nothing to show that their possession at any time was accompanied by some overt act asserting an ownership of an open, notorious and hostile character. The fact that they continued to retain possession of the lands after their right to enforce the contract became barred is not sufficient to show that they held the lands adversely to the plaintiffs. A permissive possession cannot be converted into an adverse possession unless it is proved that the person in possession asserted an adverse title to the property to the knowledge of the owner for a period of twelve years or more--See AIR 1971 S 996 : State Bank of Travancore v. A.K. Panicker."
25. Their Lordships of the Hon'ble Supreme Court in Pukhraj D. Jain and others Vs. G. Gopalakrishna (2004) 7 Supreme Court Cases 251 have held that the period of three years under Article 54 of the Limitation Act has to be reckoned from the date fixed for the ::: Downloaded on - 15/04/2017 18:32:38 :::HCHP 13 performance, or if no such date is fixed, when the plaintiff has notice that performance is refused. Their Lordships have held as under:
"5. The facts in the present case speak for .
themselves. The agreement in question was executed by appellants Nos. 6 to 10 (original owners) in favour of G. Gopala-krishna (respondent No. 1) on 5-12-1979. He himself issued a legal notice rescinding the contract and claiming refund of the advance amount paid. Thereafter on 7-11-1977 he filed suit for recovery of the advance amount paid by him. This clearly shows that he gave up his right under the contract for execution of sale deed of the property in his favour. After considerable period of time he filed an application for amendment seeking to convert the suit into one for specific performance of agreement of sale but the said application was dismissed by the trial Court on 3-12-1984 as being barred by limitation. The revision preferred against the said order was dismissed by the High Court and therefore the finding of the trial Court that the relief seeking specific performance of agreement of sale had become time barred attained finality. The suit for recovery of the amount was decreed by the trial Court on 24-7-1985 but on account of very clever device adopted by respondent No. 1 of seeking additional sum of Rs.
125/- towards cost of legal notice and thereafter not paying the requisite additional Court fee of Rs. 12.50 on the enhanced claim, the High Court in a Revision filed by him set aside the decree for refund of the amount and rejected the plaint. The suit giving rise to the present appeal was instituted by respondent No. 1 on 2-4-1988 wherein he again sought specific performance of the agreement to sell dated 5-12-1974. The trial Court was of the opinion that the present suit was filed after nearly 14 years. Even in the earlier suit (OS No. 801 of 1977) the amendment sought by the respondent No. 1 ::: Downloaded on - 15/04/2017 18:32:38 :::HCHP 14 wherein he wanted to convert his suit into one for specific performance of agreement of sale had been rejected and a finding had been recorded that the relief for specific performance had already become time barred and this finding .
had been affirmed in Revision by the High Court. Article 54 of the Limitation Act provides a limitation of three years for instituting a suit for specific performance of a contract. This period of 3 years has to be reckoned from the date fixed for the performance, or if, no such date is fixed, when the plaintiff has notice that performance is refused. The appellant Nos. 6 to 10 (original owners of the property) had opposed the application moved by respondent No. 1 in the earlier suit for amendment seeking relief of specific performance of the agreement on the ground of limitation and their plea was accepted. Thus it is crystal clear that long before filing of the present suit the respondent No. 1 had notice of the fact that the original owners were not prepared to execute the sale deed in his favour. The original owners (appellant Nos. 6 to 10) sold the property in dispute in favour of appellants Nos. 1 to 5 on 18-4-1985 after the amendment application had been rejected by the trial Court on the finding that the relief for specific performance had become barred by limitation. On these facts no other inference was possible and the trial Court was perfectly justified in holding that the suit (OS No. 1629 of 1988) was barred by limitation."
26. Their Lordships of the Hon'ble Supreme Court in Ahmadsahab Abdul Mulla (2) Vs. Bibijan and others (2009) 5 Supreme Court Cases 462 have held that the expression "date fixed for the performance" is a crystallized notion. When date is fixed, it means that there is a definite date fixed for doing a particular act. Here again, there ::: Downloaded on - 15/04/2017 18:32:38 :::HCHP 15 is a definite point of time, when the plaintiff notices the refusal. Their Lordships have held as under:
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"10. 'Fixed' in essence means having final or crystallized form or character not subject to change or fluctuation.
11. The inevitable conclusion is that the expression 'date fixed for the performance' is a crystallized notion. This is clear from the fact that the second part "time from which period begins to run" refers to a case where no such date is fixed. To put it differently, when date is fixed it means that there is a definite date fixed for doing a particular act. Even in the second part the stress is on When the plaintiff has notice that performance is refused'. Here again, there is a definite point of time, when the plaintiff notices the refusal. In that sense both the parts refer to definite dates. So, there is no question of finding out an intention from other circumstances.
12. Whether the date was fixed or not the plaintiff had notice that performance is refused and the date thereof are to be established with reference to materials and evidence to be brought on record. The expression 'date' used in Article 54 of the Schedule to the Act definitely is suggestive of a specified date in the calendar. We answer the reference accordingly. The matter shall now be placed before the Division Bench for deciding the issue on merits."
27. Accordingly, the Regular Second Appeal is allowed and the judgment and decree, dated 24.04.2006, passed by the learned District Judge, Solan, H.P. in Civil Appeal No. 73-S/13 of 2005 is set aside and ::: Downloaded on - 15/04/2017 18:32:38 :::HCHP 16 the judgment and decree, dated 03.09.2005, passed by the learned Civil Judge (Senior Division), Kasauli in Civil Suit No. 722/1 of 99/1996 is restored. The miscellaneous application(s), if any, also stand(s), disposed .
of. No costs.
(Rajiv Sharma)
Judge
July 09, 2015
(bhupender)
r to
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