Rajasthan High Court - Jaipur
Smt. Tulsi Devi & Ors. vs . Smt. Chand Bai & Anr. on 27 October, 2015
Author: Prakash Gupta
Bench: Prakash Gupta
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. JUDGMENT SB CIVIL FIRST APPEAL NO.24/1997 Smt. Tulsi Devi & Ors. Vs. Smt. Chand Bai & Anr. Date of Judgment ::::::: 27/10/2015 HON'BLE MR. JUSTICE PRAKASH GUPTA Shri VK Tamoliya & Shri Ajit Maloo for the plaintiff appellants. Shri MM Ranjan, Sr. Advocate assisted by Shri Daulat Ram Sharma for the defendant respondents. -o0o- Reportable: By the Court:-
1. The instant Civil First Appeal under Section 96 of the Code of Civil Procedure has been filed by the legal heirs of the original plaintiff Late Shri Lakshmi Narain, who died during pendency of the suit (hereinafter referred to as `the plaintiff-appellants'). Being aggrieved by the impugned judgment and decree dated 1.10.1996 passed by the learned Additional District Judge No.8, Jaipur City, Jaipur (hereinafter referred to as `the learned trial court' ) in Civil Suit No.225/1996 whereby the trial court dismissed the civil suit filed by the original plaintiff Lakshmi Narain against the defendant-respondents for specific performance of the agreement dated 31.12.1977, for grant of permanent injunction and for cancellation of the Sale-deed dated 19.11.1982 in favour of defendant-respondent No.2 Abdul Majid.
2. Briefly stated, the facts giving rise to the present appeal are that the original plaintiff, Lakshmi Narain, filed the present suit on 24/02/1983. It was stated in the plaint that the plaintiff was a tenant and was doing the business of selling betel by putting a cabin on the ground floor barandah since 1968. Defendant respondent No.1 agreed to sell the property in dispute to the plaintiff Shri Lakshmi Narain vide an agreement dated 31.12.1977 for a consideration of Rs.15,000/-. At the time of execution of agreement, an amount of Rs.4000/- was paid by the plaintiff to the defendant as part payment and the rest of the amount i.e. Rs.11,000/- was to be paid at the time of registration of the sale-deed. As per the case of the plaintiff, he had handed over to the defendant, the necessary papers for obtaining No-Objection Certificate (NOC) from the concerned authority, i.e. The Urban Ceiling Authority, Jaipur. It was also agreed that on getting NOC from the concerned authority, the defendant was to inform the plaintiff and then within a period of 15 days, he was to get the sale deed registered and the plaintiff was to bear the expenses of registration. The defendant Smt. Chand Bai did not inform about having obtained the NOC. The plaintiff disclosed to defendant No.2 the fact regarding the agreement to sale dated 31.12.1977 executed by defendant No.1. On 2.10.1982 the plaintiff met defendant No.1 and requested her to perform her part of the contract. Upon this, defendant No.1 assured the plaintiff that she would not sell the property in dispute to anybody else other than the plaintiff. Again, on 1.11.1982 similar request was made by the plaintiff but this time the defendant No.1, bluntly refused to do so. Then the plaintiff received a notice dated 3.1.1983 sent on behalf of defendant No.1 to the effect that she had sold the property in dispute to Shri Abdul Majid, defendant No.2. It was further averred in the plaint that on 22.2.1983, defendant No.2 threatened the plaintiff and tried to remove and dispossess him from the cabin where he was doing his business. The plaintiff also averred that he was always ready and willing to perform his part of the contract. Thus, the civil suit was filed for specific performance of the contract dated 31.12.1977, for cancelling the sale-deed dated 19.11.1982 and for seeking of permanent injunction.
3. Both the defendants filed their separate written statements.
4. In her written statement, defendant No.1 has come with the case that the map shown by the plaintiff is not correct. The plaintiff neither got any documents prepared for obtaining the NOC nor he was ever interested in purchasing the disputed property. He was a tenant in the premises and had illegally put his cabin. The property was rightly sold to defendant No.2 through registered sale deed dated 19.11.1982. The defendant was in need of money for starting business for her son thereby the agreement to sale was executed but it was executable up to 31.01.1978. But the plaintiff neither prepared the papers for obtaining NOC, nor did he get the sale-deed drafted nor handed over the same to the defendant. The main condition was the time period of the contract which the plaintiff never followed. Therefore, the suit is liable to be dismissed being barred by limitation. It was also mentioned that the plaintiff told that he will not be able to arrange for the money, therefore, the property was sold to defendant No.2. When the plaintiff failed to perform his part of the contract then on 28.4.1979 he was informed through UPC but no step was taken by him and hence, the amount paid as part payment was forfeited.
5. The defendant 2 in his written statement has come with this case that he was not aware about the earlier contract between the plaintiff and defendant No.1 and he was a bonafide purchaser. For a period of five years, the plaintiff did not take any step in terms of the contract dated 31.12.1977 hence, the suit is liable to be dismissed as being non-maintainable. It was also mentioned that upon the death of the original plaintiff Lakshmi Narain, his legal representatives were brought on record and amended suit was filed but the rights available to the original plaintiff in the disputed property do not devolve upon the legal representatives. Hence, the suit is liable to be dismissed and the same be dismissed.
6. On the basis of the pleadings of the parties, the learned trial court framed the following issues:-
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2. ???? ???? ??????? ?? ??????? ????? ????? ?? ??????? ????
3. ???? ????????? ??. 2 ?? ?? ??? ????? ??. 11 ?????? ???? ??? ????? ???????? ?? ? ???? ??? ?????? ????? ?? ??????? ????
4. ???? ??? ????? ???? ????
5. ???? ????????? ??. 2 ??????? ?????? ??? ? ???? ??? ?? ???? ??? ????
6. ???????
7. However, on 5.12.1990 the following additional issue was framed:-
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8. On behalf of the plaintiff, Shri Satyanarain as (PW-1) and Prem Chand as (PW-2) were examined and on behalf of defendant No.1, her son Kailash Chand as power of attorney holder was examined as (DW-1) and on behalf of defendant No.2, Abdul Mazid himself was examined as (DW-2) and Abdul Sattar was examined as (DW-3).
9. Learned trial court, after recording evidence of the parties and hearing both the sides, decided issue Nos. 1, to 4 against the plaintiff, issue No.5 in favour of the plaintiff and against defendant No.2 and vide judgment and decree dated 1.10.1996 dismissed the suit of the plaintiff.
10. Hence, this appeal, filed by the appellants who are the legal representatives of deceased plaintiff Lakshmi Narain.
11. I have heard the learned counsel for the parties and perused the material on record minutely and carefully.
12. It is submitted by the learned counsel for the appellant, Mr. V.K. Tamoliya, that it is proved by the testimony of (PW-1)-Sytanarayan that necessary papers of property and NOC were given by the plaintiff in the month of January, 1978 soon after the agreement. The learned trial Court has seriously erred in disbelieving the same. He submitted that it is also proved by the testimony of (PW-1)-Sytanarayan that not only the papers required for NOC were given but also the plaintiff approached the defendant No.1 time and again and there is no evidence contrary to it. Smt. Chand Bai has not appeared in the witness box and the testimony of (PW-1)-Sytanarayan with regard to the said facts remained uncontroverted. In the matter at hand, readiness and willingness on the part of the plaintiff is explicitly clear from the material on record as to having performed his part of contract but the learned trial Court failed to consider the evidence in right perspective on the point of readiness and willingness. It is not required to prove that the plaintiff had money with him every time.
13. It is submitted that the learned trial Court wrongly held that the suit was not filed within the period of limitation. Article 54 of the Limitation Act, stipulates three years as date fixed for performance or if such date is not fixed then the date when the plaintiff has notice that the performance is refused. In the matter at hand, no time in the agreement to sell was stipulated for execution of sale deed. The plaintiff, in his plaint, clearly stated that the defendant No.1 refused to perform part of the contract on 1/10/1982. The limitation started from the said date and thus, the suit is filed within the prescribed time of the limitation.
14. In support of his contentions, learned counsel for the appellant has placed reliance upon (2004) 6 SCC 649 P.D'Souza Vs. Shondrilo Naidu, (2000) 10 SCC 636 A. Abdul Rashid Khan (Dead) and Others Vs. P.A.K.A. Shahul Hamid and Others, WLC (SC) Civil 2002 512 Nirmala Anand Vs. Advent Corporation Pvt. Ltd. & Ors., DNJ (SC) 2005 121 Sargunam (Dead) By LR. Vs. Chidambaram & Anr., AIR 1996 Calcutta 67 Vijaya Minerals Pvt. Ltd. Vs. Bikash Chandra Deb, AIR 1975 Rajasthan 69 Deenanath Vs. Chunnilal, AIR 1999 Rajasthan 201 Prithvi Raj Singh Vs. Dalip Kulkarni and Others, AIR 1996 SC 2510 Sukhbir Singh and Others Vs. Brij Pal Singh and Others, AIR 1967 Madras 220 (V 54 C 66 (1) S.P. Narayaaswami Pillai Vs. Dhanakoti Ammal, AIR 1986 Delhi 275 Sant Lal Vs. Shyam Dhawan, AIR 1970 SC 546(1) Nathulal Vs. Phoolchand, (1999) 8 SCC 587 Shakuntala (Smt.) Vs. Narayan Gundoji Chavan and Others and RLW 1999(1) Raj. Ram Karan and Others Vs. Govind Lal and Another.
15. On the other hand, Mr. M.M. Ranjan, learned senior counsel for the respondent has submitted that it is proved from the evidence that the plaintiff has never been ready and willing to perform his part of agreement. The plaintiff utterly failed to prove that he had handed over the papers for obtaining the NOC. This fact clearly goes to show that he was not ready and willing to perform his part of the contract. Only a meager amount of Rs. 4000/- was paid and no efforts were made by the plaintiff for offering the rest of the amount of sale consideration i.e. Rs. 11000/-. A long silence on the part of the plaintiff clearly shows that the plaintiff was never ready and willing to perform his part of the contract. No explanation has been offered in the plaint regarding delay and latches. The learned counsel submitted that granting of a decree for specific performance is a discretionary relief and in the facts and circumstances of the case the plaintiff is not entitled to any indulgence from this Court. The learned trial Court thoroughly considered the evidence on record. The judgment passed by the learned trial Court is neither perverse nor contrary to law and is in accordance with evidence available on record. He submitted that the learned trial Court has rightly held that the suit was barred by limitation.
16. Reliance has been placed by the learned senior counsel for the respondents on AIR 2001 SC 2783 A.C. Arulappan Vs. Smt. Ahalya Naik, AIR 2001 SC 2788 P.C. Joshi Vs. State of U.P. And Others, AIR 1994 SC 104 Pradeep Kumar Vs. State of U.P., (2012) 8 SCC 659 Rattan Lal (since deceased) Thorugh His legal Representatives Vs. S.N. Bhalla and Others, AIR 2005 SC 1836 Shanmughasundaram and Others Vs. Diravia Nadar (Dead) by L.Rs. And another, AIR 2002 SC 1279 V. Muthusami (dead) by LRs., vs. Angammal and others and AIR 1996 SC 2150 Kanshi Ram Vs. Om Prakash Jawal and others.
17. I have considered the rival submissions made by the learned counsels for both the parties and rulings cited by them.
18. The execution of agreement to sell (Ex.-1) dated 31/12/1977 is not in dispute between the parties. The relevant condition of the agreement to sell Ex.-1 is reproduced as under:-
??.?.??. ??????? ???? ?? ?? ?????? ?? ????? ? ????????? ?????? ???? ?????? ???? ?? ????????? ?????? ?? ?? ?????? ?? ????? ??????? ???? ?? ?????? ??? ???? ???, ?????? ??????? ???? ?? ?? ?? ??? ?? ????? ???? ??? ?? ??.?.??. ??????? ???? ?? ?????? ????? ?????? ????? ???? ?? ?? ????, ?? ????? ???? ??? ???? ??? ?????? ?? ?????? ???? ????? ??????? ??? ?????? ????? ?? ??? ??? ?? ????, ?? ???? ?? ??.?.??. ??????? ???? ??????? ???? ?? ????? ????? ?? ????, ?? ????? ?????? ?? ??????? ???? ?????? ??? ?? ???? ??? ?????? ???? ???? ????? ?? ??????? ????? ???? ?? ?? ????, ?? ????? ???? ???? ?????? ???? ????????? ??? ??? ?? ????, ?? ???? ?? 11,000/- ????? ???? ????? ?????? ?? ???????? ?? ???? ?? ????, ??? ??????? ???? ?? ?????? ???? ??????? ????? ?? ????? ???? ?????? ???? ?? ?????? ? ???, ?? ??.?.??. ?? ?????? ????? ?????? ????? ?? ????? ???? ?????? ?? ????, ?? ??????? ???? ?? ???? ????? ?????? ???? ?? ????? ???? ?? ?????? ????????? ?????? ? ????? ????? ??? ???? ??? ?? ??? ????? ?? ?? ????, ????? ????? ???? ?? ?????? ???? ????, ??? ??? ??????? ???? ?? ?? ?? ??? ?? ??.?.??. ?? ?????? ????? ?????? ????? ???? ?? ? ??, ?? ?????? ???? ???? ?? ?????? ???, ?? ????? ???? ?? ?? ???? ???? ??????? ????? 4000/- ???? ????? ??? ???? ?? ????, ?? ???? ?????? ???? ?? ???? ?? ??????, ?????? ??? ??????? ???? ?? ?? ?? ???? ???? ????? ????? ???? ?? ???? ???? ?? ?? ???? ????
19. It is explicitly clear from the above that the plaintiff was required to prepare the papers for getting NOC in his name and same were to be handed over to the defendant within one month. In this regard it has come in the evidence of PW1-Satyanarain that after getting the papers for NOC the same were handed over to Smt. Chand Bai but Smt. Chand Bai did not inform about the NOC. The evidence of (PW-1)-Satyanarain is not reliable because in his cross examination he admitted that NOC ?? ????-???? ?????? ????? ???? ?? ??? ????........ NOC ?? ???? ????? ????? ?? ??????? ???? ?? ????? ????? ???? NOC ?? ????? ???? ???? ?? ??? ???? ?? ???? ????? ????? ???? ??????, NOC ?? ???? ???? ?? ????? ??? ???? ??".
20. In addition to above, although plaintiff's son (PW-1)-Satyanarian, who is also his power of attorney holder, has stated that the documents were handed over for getting the NOC issued to the defendant yet his aforesaid statement stands rebutted by the on oath statement of (DW-1)- Kailash Chand who is son and power of attorney holder of defendant, so it cannot be said that he had no knowledge of the facts of the case. No suggestion was given to him to the effect that he was not conversant with the facts narrated by him in his testimony. Additionally, the plaintiff has not produced any documentary evidence to prove as to what steps were taken by him to perform his part of the contract. Therefore, the plaintiff has failed to discharge even the initial burden of proof, which lay upon him to prove the readiness and willingness to perform his part of the contract.
21. It is revealed from condition No. 3 that after receiving the papers for NOC, the defendant was required to submit the papers to the competent authority after signing the same. If the papers were given to the defendant by the plaintiff and defendant did not fulfill the condition, then certainly the plaintiff was required to take steps in this regard but from the evidence, it is clear that plaintiff did not send the papers to defendant for getting the NOC.
22. On behalf of the defendant No.1 a notice-(Ex.-A2) has been proved which was sent by UPC, the receipt of which (Ex.-A1). The contents of the notice-(Ex.-A2) are as under:-
????? ???? ?? ??? ???? ??? ???? ???. ???? ??????? ??? ??
???? ?? ????, ???? ??? ??????
?????? 28 ?????? 1979 ???
???? ???????????? ????? ???? ????? ??? ?? ???? ????
?????? ????? ????????, ????? ??? ??????, ????? ?? ?? ???? ?? ???, ??????
?? ?? ????? ???? ???? ???????? ?????? ???? ?? ???? ?? ???? ? ???? ???? ?????? ??? ?? ?????? 31 ??????? 1977 ?? ?? ?? ?? ??? ?? ?? ?? ??? ??? ???? 31 ????? 1978 ?? ?? ???? ?? ??.?.?? ? ???? ?????? ????? ???? ?? ???? ?? ?????? ???? ? ???? ??? ?? ?? ?? ??? ?? ??? ?? ??? ???? ?????? ?? ????? ???? ???? ?? ??????? ????? ???? ?? ?????? ?? ??????? ??? ????? ????? ???? ???? ???????? ????????? ???? ?? ????? ?? ????? ?? ?? ????? ???????? ?????? ???? ?? ???? ?? ????? ?? ?? ??????? ?? ??? ??? ???? ?????? ?? ????? ????? ?? ?? ???? ??? ???? ???? ?? ???? ? ???? ???? ??? ????? ???? ???? ?? ?? ???? ?? ??? ?? ???? ?????? ?? ??? ???? ?? ????? ???? ???? ???? ???? ?? ????? ???? ??????? ???? ????
??: ???? ????? ???? ?????? ?? ?? ???? ? ???? ???? ??? ????? ???? ?? ???? ???? ??? ?? ??? ??????? ?? ???? ???? ?? ?? ?? ??? ???? ???? ????
(???? ???)
23. From the statement of (PW-1)-Satyanarain, it is clear that UPC receipt-(Ex.-A1) bears the correct postal address of the plaintiff-Lakshmi Narain. Although he has stated that Letter-(Ex.-A2) was not given by Chand Devi to Lakshmi Narain but he has not stated that this was not received by Lakshmi Narain. The defendant's son and power of attorney holder Kailash Chand-DW1 has duly proved the UPC receipt-(Ex.-A1) and letter-(Ex.-A2). No suggestion has been given on behalf of the plaintiff to him that letter-(Ex.-A2) was not sent to the plaintiff or the same was not received by the plaintiff. Hence, there is nothing on record to disbelive the oral and documentary evidence produced by the defendant. Although the learned trial Court has not given any importance to (Ex.-A1) and (Ex.-A2). But in my opinion, the reasons given by the learned trial Court to disbelieve the above documents are not justified. However, I have justified reasons to rely upon the above two documents, as have been discussed above.
24. Admittedly, the suit was filed after a lapse of 6 long years. It is pertinent to mention here that only amount Rs. 4000/- was paid in part of performance and the rest of the amount Rs. 11000/- remain unpaid. There is no evidence on record which shows that the plaintiff was ever ready and willing to pay the remaining amount of Rs. 11000/- to the defendant. A long silence on the part of the plaintiff clearly shows that the plaintiff was never ready and willing to perform his part of the contract.
25. It is settled law that granting of decree for specific performance is a discretionary relief and in the above facts and circumstances of the case and evidence available on record the plaintiff is not entitled to get the relief of specific performance in this case. The learned trial Court rightly held that the plaintiff was not ready and willing to perform his part of the contract.
Therefore, the learned trial Court has rightly held that the documents were not handed over to the defendant for getting the NOC issued. In this regard, the learned trial Court has considered the evidence on record in right perspective.
26. Sofar as the question regarding filing of suit beyond the prescribed period of limitation is concerned, Article 54 of the Limitation Act is very clear. For ready reference, Article 54 of the Limitation Act is being reproduced as under:-
Description of suit Period of Limitation Time from which period begins to run For specific performance of a contract.
Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.
27. From perusal of the above quoted Article 54 it is clear that this Article stipulates three years period for specific performance if such date is fixed or if no such date is fixed, when the plaintiff has notice that performance is refused. In the case at hand, the agreement to sell was executed between the parties on 31.12.1977 with the condition that the purchaser (plaintiff) shall bear all the expenses for preparing the documents for obtaining NOC from the competent authority and the purchaser shall get the necessary documents prepared and hand over the same to the seller (defendant) within a month from the date of agreement to sell and the seller within this period shall sign the documents and shall submit the same before the competent authority and after obtaining NOC shall inform the purchaser in writing. Upon receiving such information the purchaser shall get the sale-deed prepared at his own expenses and then the seller after putting signatures, shall submit the same for registration.
28. As has been discussed hereinabove, the plaintiff appellant has failed to prove this fact that as per the terms of the agreement, for the purpose of obtaining NOC from the competent authority, he got the papers prepared and within the stipulated period of one month, handed over the same to the defendant for her signatures and for submitting the same before the competent authority. Therefore, as per the provisions of Article 54 of the Limitation Act, the period of limitation starts from 28/04/1979 i.e. the date on which the plaintiff had knowledge of intimation on the part of the defendant No.1 to treat this agreement as cancelled, hence, plaintiff had sufficient material to come to the conclusion that on 28/04/1979 the defendant No.1 has refused to fulfill his part of the contract in view of Article 54 the Limitation Act to file the present suit as the limitation would start from 28/04/1979 i.e. Date of notice-(Ex.-A2) and the plaintiff having come to the court on 28/02/1983, the suit filed by him was time barred. Thus, the finding of the learned trial court on issue No.4 regarding limitation is based on proper appreciation of the facts and evidence available on record and the settled legal position and hence, the same does not require any interference of this Court.
In view of the above discussion, this appeal is liable to be dismissed and hence, is accordingly dismissed.
(Prakash Gupta),J.
S.R. Kumawat/-
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Seva Ram Kumawat Jr. P.A