Himachal Pradesh High Court
Shiv Saran Dass vs Smt.Rajindera Devi & Others on 5 September, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Regular Second Appeal No.555 of 2005 alongwith CMPMO
No.166 of 2007.
Judgment Reserved on: 21.07.2017.
.
Date of decision: 05.09.2017
RSA No.555 of 2005.
Shiv Saran Dass ....Appellant-Plaintiff
Versus
Smt.Rajindera Devi & Others ....Respondents-Defendants
CMPMO No.166 of 2007.
Shiv Saran Dass r ....Petitioner
Versus
Smt.Rajindra Kumari & Others. ....Respondents
Coram
The Hon'ble Mr.Justice Sandeep Sharma,Judge.
Whether approved for reporting ?1 Yes.
For the Appellant: Mr.Bhupender Gupta, Senior Advocate
with Mr.Janesh Gupta, Advocate in RSA
No.555 of 2005 and for the petitioner in
CMPMO No.166 of 2007.
For the Respondents: Mr.Sumeet Raj Sharma, Advocate in both
the cases.
Sandeep Sharma,J.
This appeal has been filed by the appellant-plaintiff against the judgment and decree dated 17.08.2005, passed by the learned District Judge, Shimla, District Shimla, H.P., affirming the judgment and decree dated 06.10.2003, passed by learned 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes.
::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 2Sub Judge, Court No.5, Shimla, whereby the suit filed by the appellant-plaintiff has been dismissed.
2. Briefly stated facts, as emerged from the record, are .
that the appellant-plaintiff (hereinafter referred to as the 'plaintiff), filed a suit for specific performance of contract and in the alternative for declaration to the effect that the plaintiff has become owner by way of adverse possession. It is averred in the plaint that Shri Raj Kumar Rajinder Singh, predecessor-in-
interest of the defendants, was the owner of the suit property comprised in 'Padam Castle Compound', as detailed in the judgment and decree of the learned trial Court. It is further averred by the plaintiff that he was inducted as a tenant by said Shri Raj Kumar Rajinder Singh in respect of residential premises in 'Padam Castle Compound' in the year 1966. It is the claim of the plaintiff that on 18.12.1973, Shri Raj Kumar Rajinder Singh agreed to sell the suit property to the plaintiff for Rs.45,000/-, for which plaintiff had paid a part sale consideration of Rs.10,000/-
to Shri Raj Kumar Rajinder Singh. It is the claim of the plaintiff that he was already in possession of the suit property as tenant and his possession was deemed to have been surrendered in part performance of the agreement. It is further averred that balance sale consideration was agreed to be paid by the plaintiff at the time of registration of the sale deed. Subsequently, another agreement, dated 15.01.1975 was executed between them, when a further part of sale consideration was paid by the plaintiff to the vendor-predecessor-in-interest of the defendants (hereinafter ::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 3 referred to as the 'vendor'). Since the suit property was mortgaged by the vendor with the Himachal Pradesh State Co-
operative Bank, Shimla, (for short 'Co-operative Bank') sale deed .
was agreed to be executed after redemption of the mortgage by the vendor Shri Raj Kumar Rajinder Singh. It is averred by the plaintiff that thereafter, he had been requesting the predecessor-
in-interest of the defendants and then defendants personally as well as through their General Power of Attorney Shri Surat Ram Jhingta, for execution of the sale deed, but they repeatedly informed the plaintiff that the deed shall be executed after redemption of the mortgage. It is claimed by the plaintiff that defendants recently raised a hotel upon the property adjoining to the suit property, causing apprehension in his mind that defendants must have redeemed the property. It is averred that thereafter plaintiff sent a latter, dated 14.9.2001 to the defendants requesting them to execute a sale deed in terms of the agreements, but no response was received from the defendants.
Consequently, a legal notice, through lawyer was issued to the defendants, claiming that part of sale consideration has been paid to them and he is ready and willing to perform his part of the contract. It is further averred by the plaintiff that he, throughout after agreement, treated himself to be the owner of the property and liable to be declared as such and defendants were required to perform their part of agreements, dated 18.12.1973 and 15.01.1975 and execute sale deed in favour of the plaintiff. In the ::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 4 alternative, plaintiff sought decree having become owner of the suit property by way of adverse possession.
3. Defendants, by way of filing written statement, raised .
preliminary objections on the grounds of limitation, maintainability and estoppel etc. On merits, the defendants admitted that sale agreement was entered into by predecessor-in-
interest of the defendants with the plaintiff and in total they had received consideration of Rs.18,000/-, but claimed that possession of the suit property, as tenant, was with the plaintiff, therefore, by no stretch of imagination it can be claimed that the plaintiff has become owner by way of adverse possession. It is averred that the agreement was valid for one year and after expiry of period of one year, defendants were required to pay back a sum of Rs.40,000/- to the plaintiff. It is further averred that construction work of the defendants was in progress for five years. So, limitation to sue, on the basis of agreements, dated 18.12.1973 and 15.01.1975, stands expired and they were not bound by the terms and conditions of the agreements.
4. By way of replication, plaintiff re-asserted his case, as set up in the plaint, controverting the stand taken by the defendants in the written statement and claimed that he has already paid Rs.22,500/- in part performance of the agreement and is ready and willing to perform his part of the agreement.
5. On the pleadings of the parties, the learned trial Court framed the following issues:-
::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 5"1. Whether the plaintiff is entitled for the relief of specific performance of agreement, as prayed? OPP.
2. Whether the plaintiff has become owner of suit property by way of adverse possession, as alleged? OPP.
.
3. Whether the plaintiff is entitled for the relief of injunction? OPP.
4. Whether the suit is barred by limitation? OPD.
5. Whether the suit is not maintainable? OPD.
6. Whether there is never valid transfer of title in favour of the plaintiff? OPD.
7. Whether the plaintiff is estopped from filing the present suit against the defendants, on account of his own acts, deeds and acquiescence? OPD.
8. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD.
9. Relief."
6. Learned trial Court vide judgment and decree dated 06.10.2003 dismissed the suit of the plaintiff. Feeling aggrieved and dissatisfied with the aforesaid judgment and decree passed by the learned trial Court, appellant-plaintiff filed an appeal under Section 96 of the Code of Civil Procedure (for short `CPC') before the learned District Judge, Shimla, who, vide impugned judgment and decree dated 17.08.2005, also dismissed the appeal preferred by the plaintiff by affirming the judgment and decree passed by the learned trial Court. In the aforesaid background, the present appellant-plaintiff filed this Regular Second Appeal before this Court, details whereof have already been given above.
::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 67. This second appeal was admitted on the following substantial questions of law:
"(1) Whether both the Courts below have misconstrued the essential terms of .
Agreement of Sale Ex.PW-1/A and PW-1/E in concluding that the time was essence of the contract?
2. Whether both the Courts below have returned erroneous and perverse findings in holding that the suit of the plaintiff-appellant was barred by limitation, ignoring the clauses of Ex.PW-1/A and Ex.PW-1/E as well as correspondence Ex.PW-1/L, Ex.PW-1/M and Ex.PW-1/O and the fact of non redeeming the mortgage regarding the property in question?
3. Whether both the Courts below have gravely erred in law in not properly construing the provisions of Article 54 of Limitation Act, whereby it is provided that cause of action to r institute the suit for specific performance arises from the date of refusal of the performance of the Agreement?
4. Whether both the Courts below have acted with material illegality and irregularity in concluding that the plaintiff was not ready and willing to perform his part of the contract by ignoring material evidence on the record pointing out that the default was on the part of the defendants who also did not respondent to the notices Ex.PW-1/Q and Ex.PW-1/R?
5. Whether both the Courts below have recorded erroneous and perverse findings in holding that the status of the plaintiff-appellant over the suit property is in the capacity of tenant?
6. Whether the findings of the courts below are illegal, erroneous and perverse in holding that the possession of the plaintiff is not adverse?"
8. Shri Bhupender Gupta, learned Senior Counsel representing the plaintiff-appellant, strenuously argued that the judgment and decree passed by both the Courts below are highly unjust, illegal, arbitrary, against the facts and law and as such ::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 7 deserve to be quashed and set aside. While inviting the attention of this Court to the judgment and decree passed by both the Courts below, learned Senior Counsel vehemently argued that .
there is absolute misconstruction of the agreements dated 18.12.1973 & 15.1.1975, Ex.PW-1/A & Ex.PW-1/E respectively, by the Courts below while arriving at the conclusion that since the time limit for execution of the sale deed was specified in the agreements, therefore, the plaintiff ought to have instituted the suit within three years from the expiry of the said period specified in the agreements. Learned Senior Counsel further contended that both the Courts below have erred in concluding that time was essence of the contract by taking into consideration the recital in the agreements that maximum period for execution of the sale deed was specified as one year. Learned Senior Counsel further contended that correspondence allegedly made by the General Power of Attorney (for short 'GPA') of the vendor, which was placed on record, clearly suggests that time for performance of agreement was sought to be extended by the seller from time to time and as such there was no occasion for the Courts below to hold that time was essence of contract and as such finding to this effect being contrary to the record deserves to be quashed and set aside being illegal, arbitrary, erroneous and perverse.
9. While inviting the attention of this Court to the communication dated 20.6.1992, Ex.DW-1/A, learned Senior Counsel contended that both the Courts below put undue reliance on the aforesaid document purported to have been sent ::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 8 by the Attorney of vendor intimating therein that the vendor does not intend to sell the property. Mr.Gupta, learned Senior Counsel, contended that document referred hereinabove was not .
legally proved on record, rather, objection, having been made on behalf of the plaintiff with regard to admissibility of the same, was not decided and as such both the Courts below have fallen into grave error while placing reliance upon the inadmissible document and as such finding returned on the same to the effect that suit is barred by limitation is not sustainable and as such same deserves to be quashed and set aside. Learned Senior Counsel further contended that both the Courts below have failed to appreciate that the bare perusal of Section 54 of the Limitation Act suggests that limitation to file a suit for specific performance of agreement is three years from the date of refusal. Learned Senior Counsel contended that admission, if any, having been made by the plaintiff with regard to commencement of construction of hotel by defendants somewhere in the year 1996 was wholly irrelevant for computing the period of limitation in filing the suit for specific performance of agreement, rather, date of refusal was relevant/important for computing the period of limitation. Learned Senior Counsel contended that notices Ex.PW-1/Q and Ex.PW-1/R were not replied by the defendants and as such findings of both the Courts below that the suit is barred by limitation are erroneous, illegal and perverse because cause of action, if any, accrued to the plaintiff for filing the suit ::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 9 from the expiry of the time specified in notice dated 19.10.2001, Ex.PW-1/R.
10. Learned Senior Counsel further contended that both .
the Courts below have committed grave error of jurisdiction in not taking into consideration the vital aspect of the matter that the sale deed was to be executed by the defendants in favour of the plaintiff in accordance with the agreements of sale, after getting the suit property redeemed from the bank. Learned Senior Counsel further contended that perusal of correspondence exchanged between the Attorney-cum-Secretary; namely; Shri Surat Ram Jhingta and the plaintiff clearly proves on record that mortgage was not got redeemed for a considerably long period of time, but both the Courts below took erroneous view of law that the plaintiff's suit was barred by limitation, since the plaintiff failed to explain reasons for not taking any action during such a long period. Mr.Gupta, learned Senior Counsel, further contended that sale deed was to be executed after redemption of the mortgage, but in the instant case, there is nothing on record suggestive of the fact that the defendants-respondents were ever able to prove on record that after redemption of mortgage, the plaintiff was intimated and called upon to get the sale deed executed.
11. Lastly, Mr.Gupta contended that limitation to file suit in the instant case was to be construed/inferred from the conduct of parties. In support of his aforesaid submission, learned Senior Counsel placed reliance upon the judgments of ::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 10 Hon'ble Apex Court in Panchanan Dhara and Others vs. Monmatha Nath Maity (Dead) Through LRs and Another, (2006)5 SCC 340 and S.Brahmanand and Others vs. K.R. .
Muthugopal (Dead) and Others, (2005)12 SCC 764.
12. While concluding his arguments, Mr.Gupta, contended that finding returned by trial Court with regard to readiness and willingness of the plaintiff to perform his part of the contract is also contrary to the evidence adduced on record because there is no iota of evidence adduced on record by the defendants showing un-willingness, if any, on the part of the plaintiff for performance of his part of contract, rather, plaintiff successfully proved on record that he was ever ready and willing to perform his part of the contract by paying the balance amount of sale consideration to get the sale deed executed and registered in his favour. With the aforesaid submissions, learned Senior Counsel contended that the suit of the plaintiff be decreed after setting aside the judgment and decree passed by both the Courts below with the direction to the defendants-respondents to execute sale deed in terms of agreements Ex.PW-1/A & Ex.PW-1/E.
13. Shri Sumeet Raj Sharma, learned counsel representing the respondents-defendants, while refuting the aforesaid submissions having been made by the learned Senior Counsel representing the appellant-plaintiff, contended that there is no illegality and infirmity in the judgments passed by learned Courts below, rather the same are based upon correct appreciation of evidence as well as law. While referring to the ::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 11 impugned judgment and decree passed by both the Courts below, Mr.Sharma contended that there is no scope of interference, especially in view of the concurrent findings of fact recorded by .
Courts below. With a view to substantiate his aforesaid arguments, learned counsel made this Court to peruse the agreements Ex.PW-1/A and Ex.PW-1/E to demonstrate that time limit for execution of sale deed was specifically specified in the agreements. Learned counsel further contended that vide aforesaid agreements, sale deed was to be executed within a period of one year, during which period vendor was also to get the property redeemed from the bank and in the event of failure on the part of vendor to redeem the property within the aforesaid period and to execute the sale deed consequent thereto, he was liable to pay double the amount to the plaintiff. Learned counsel contended that bare perusal of terms/conditions contained in the agreements, referred herein above, clearly suggests that time was essence of contract inter se parties but since, within stipulated and agreed period of one year, neither property was redeemed nor sale deed was executed by the defendants, the plaintiff was well within his right to get his money refunded. While inviting the attention of this Court to Article 54 of the Limitation Act, learned counsel contended that suit for specific performance of agreement, if any, could be filed by the plaintiff within a period of three years from the date of expiry of one year period as stipulated in the agreements, referred hereinabove, and as such, there is no illegality and infirmity in the judgments and decrees ::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 12 passed by both the learned Courts below, which are definitely based upon proper appreciation of evidence adduced on record by the respective parties.
.
14. Learned counsel, while referring to the correspondence allegedly made on behalf of the vendor, contended that it is of no consequence, especially when there is nothing on record suggestive of the fact that the aforesaid communications made on behalf of the vendor were ever replied to by the plaintiff and as such learned Courts below rightly termed them to be unilateral. While inviting the attention of this Court to the cross-examination conducted on plaintiff Shri Shiv Saran Dass, learned counsel contended that it has specifically come in the cross-examination of the plaintiff that the plaintiff acquired knowledge with regard to construction of hotel by defendants in the year 1996 on the land adjacent to the suit land, but, admittedly suit for specific performance came to be filed in the year 2001. While inviting the attention of this Court to Ex.DW-1/A, learned counsel contended that it was conveyed to the plaintiff in the year 1992 that defendants are not willing to sell their property in terms of agreements Ex.PW-1/A and Ex.PW-
1/E, which otherwise had become time barred with the afflux of time. Learned counsel further contended that though limitation is/was required to be computed strictly in terms of the time specified in the agreements, referred hereinabove, but even if, for the sake of arguments, it is presumed that limitation had to start from the date of refusal on the part of the defendants to execute ::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 13 the sale deed in terms of agreements, suit, if any, could be filed within three years from the date of communication Ex.DW-1/A, whereby plaintiff was apprised of the intention of the defendants .
to not to sell the property in terms of aforesaid agreements.
Learned counsel contended that the judgment, relied upon by the learned Senior Counsel representing the plaintiff in support of his contention that limitation was required to be inferred from overall conduct of the parties, is not applicable in the present case, in view of specific recital of time in agreements i.e. Ex.PW-1/A and Ex.PW-1/E.
15. Learned counsel, while inviting the attention of this Court to the judgment passed by Hon'ble Apex Court in Narendra Gopal Vidyarthi vs. Rajat Vidyarthi, (2009)3 SCC 287, (2000)3 SCC 708 and Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264, forcibly contended that present appeal is not maintainable, in view of concurrent findings of fact recorded by learned Courts below and as such same deserves to be quashed and set aside.
16. I have heard learned counsel for the parties and gone through the record of the case.
17. Since specific objection with regard to maintainability of present appeal, in view of concurrent findings of fact recorded by Courts below, has been taken by the defendants, this Court deems it necessary to deal with the same at first instance before exploring answer, if any, to the substantial questions of law formulated hereinabove. Though learned ::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 14 counsel representing the defendants has placed reliance upon the judgments, as have been taken note above, this Court deems it proper to take into consideration latest judgment passed by .
Hon'ble Apex Court in Laxmidevamma's case supra, wherein it has been held as under:-
"16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plaintiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have full-fledged right and on that premise rproceeded to hold that declaration to the plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained."
(p.269)
18. Perusal of the aforesaid judgment suggests that in exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. This Court, after having taken note of observations made by Hon'ble Apex Court in judgment supra, sees no reason to differ with the argument having been made by learned counsel representing the defendants that in normal circumstance concurrent findings of fact recorded by Courts below should not be interfered with by ::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 15 the High Courts, rather, High Courts, while exercising powers under Section 100 CPC, are restrained from re-appreciating the evidence available on record. But, aforesaid judgment passed by .
Hon'ble Apex Court nowhere suggests that there is complete bar for High Courts to upset the concurrent findings of the Courts below, especially when finding recorded by Courts below appears to be perverse.
19. It is well settled by now that a finding of fact itself may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said findings, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread. In this regard, reliance is placed upon the judgment of Hon'ble Supreme Court in Chandna Impex Private Limited vs. Commissioner of Customs, New Delhi, (2011)7 SCC 289, wherein the Hon'ble Apex Court has held as under:-
"14. In Hero Vinoth Vs. Seshammal, (2006)5 SCC 545, referring to the Constitution Bench decision of this Court in Sir Chunilal V. Mehta & Sons Ltd. Vs. Century Spg. & Mfg. Co.Ltd., AIR 1962 SC 1314, as also a number of other decisions on the point, this Court culled out three principles for determining whether a question of law raised in a case is substantial. One of the principles so summarised, is : (Hero Vinoth case, SCC p.556, para 24) "24.(iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognized exceptions are where (i) the courts below ::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 16 have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total .
dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding".
(p.294)
20. Hon'ble Apex Court in D.R. Rathna Murthy vs. Ramappa, (2011)1 SCC 158, has specifically held that High Court can interfere with the findings of fact even in the second appeal, provided the findings recorded by Courts below are found to be perverse. It has further been held in the case supra that there is no absolute bar on the re-appreciation of evidence in those proceedings; however, such a course is permissible in exceptional circumstances. The Hon'ble Apex Court has held as under:-
"9. Undoubtedly, the High Court can interfere with the findings of fact even in the Second Appeal, provided the findings recorded by the courts below are found to be perverse i.e. not being based on the evidence or contrary to the evidence on record or reasoning is based on surmises and misreading of the evidence on record or where the core issue is not decided. There is no absolute bar on the re-appreciation of evidence in those proceedings, however, such a course is permissible in exceptional circumstances. (Vide Rajappa Hanamantha Ranoji v. Mahadev Channabasappa, (2000)6 SCC 120; Hafazat Hussain v. Abdul Majeed, (2001) 7 SCC 189 and Bharatha Matha & Anr. v. R. Vijaya Renganathan, (2010)11 SCC 483.)"
(p.162) ::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 17
21. Hon'ble Apex Court in Santosh Hazari vs. Purushottam Tiwari (Deceased) By LRs., (2001)3 SCC 179, has held that appellate Court ought not to interfere with the .
findings of trial Judge on a question of fact unless the latter has overlooked some peculiar feature connected with evidence of a witness or such evidence on balance is sufficiently improbable so as to invite displacement by appellate Court.
22. Careful reading of aforesaid law laid down by Hon'ble Apex Court clearly suggests that there is no blanket bar for High Courts to upset the concurrent findings of Courts below, especially when it emerge from the record that (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. Hon'ble Apex Court in Sebastiao Luis Fernandes (Dead) through LRs and Others vs. K.V.P. Shastri (Dead) through LRs and Others, (2013)15 SCC 161, has held as under:
"35. The learned counsel for the defendants relied on the judgment of this Court in Hero Vinoth v.
Seshammal, (2006)5 SCC 545, wherein the principles relating to Section 100 of the CPC were summarized in para 24, which is extracted below : (SCC pp.555-
56) "24. The principles relating to Section 100 CPC relevant for this case may be summarised thus:
(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law.
Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is ::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 18 misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of .
law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not r because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
(iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
We have to place reliance on the afore-mentioned case to hold that the High Court has framed substantial questions of law as per Section 100 of the CPC, and there is no error in the judgment of the High Court in this regard and therefore, there is no need for this Court to interfere with the same."
(pp.174-175) ::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 19
23. It is quite evident from the aforesaid exposition of law that even concurrent findings of fact recorded by Courts below can be interfered with/upset by the High Courts, while .
exercising power under Section 100 CPC, if it is convinced that findings recorded by Courts below are not based upon any evidence and same are perverse. At this stage, it may be noticed that during the proceedings of the case, learned counsel representing the appellant-plaintiff was able to point out certain material irregularities/illegalities committed by Courts below, while examining/analyzing the evidence adduced on record by both the parties and as such this Court deems it proper to examine the pleadings/evidence adduced on record by the respective parties in support of their respective claim so that correctness and genuineness of arguments made by learned counsel to the effect that judgments passed by Courts below are wholly perverse, is ascertained.
24. Keeping in view the contents and text of substantial questions of law, reproduced hereinabove, this Court intends to take all substantial questions of law together as they are interconnected.
25. There is no dispute with regard to execution of agreements dated 18.12.1973 and 15.1.1975, Ex.PW-1/A and Ex./PW-1/E, as well as receipt of part consideration to the extent of Rs.18,000/- by the predecessor-in-interest of the defendants from the plaintiff. In nutshell, the case of the plaintiff is that in furtherance of agreements Ex.PW-1/A and Ex.PW-1/E, part sale ::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 20 consideration was paid by the plaintiff and since property was mortgaged by the vendor in favour of Cooperative Bank, sale deed could only be executed after redemption of property in question.
.
Since property came to be redeemed in the year 2001, plaintiff, being ready and willing to perform his part of agreement, claimed that he is entitled to relief of specific performance. Plaintiff further claimed that after redemption of property in the year 2001, he got issued notice Ex.PW-1/Q to the defendants, which was not answered, thereafter another legal notice Ex.PW-1/R was issued to the defendants which proves on the record, his readiness and willingness to execute the aforesaid agreements.
Whereas, case of the defendants is that time was essence of the agreements, referred hereinabove, and same was valid for a maximum period of one year only and after the expiry of period mentioned in the agreements, the same stood expired and as such suit for specific performance, having been filed by plaintiff, deserves to be dismissed being barred by limitation.
26. Apart from above, defendants claimed that since there was default clause in both the agreements, the plaintiff could claim amount in terms of agreement in the event of default on the part of defendants to execute the agreement after expiry of one year and as such redemption of property was not a condition precedent in execution of an agreement and as such suit deserves to be quashed and set aside. Learned Courts below, taking note of recital made in the agreements, referred herein above, came to the conclusion that time was essence of the contract and suit for ::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 21 specific performance, having been filed by the plaintiff, after three years from the date stipulated in the agreements is beyond limitation and as such same was dismissed. Learned Courts .
below also held that perusal of agreements Ex.PW-1/A and Ex.PW-1/E reveals that maximum period set for redemption of suit property from the Cooperative Bank was one year and if it was not redeemed within the period specified in the agreements, plaintiff could claim refund of amount in terms of default clause contained in both the agreements.
27. Issue in the instant case is with regard to interpretation of two agreements admittedly entered inter se plaintiff and the vendor. Vide Ex.PW-1/A, vendor being owner of estate known as 'Padam Castle Shimla' agreed to sell quarters known as 'Padam Castle Quarters' and the vacant land adjoining the said quarters and two latrines outside the said quarters, in lieu of price settled at Rs.45,000/-. By way of aforesaid agreement, vendor agreed to sell double storeyed building having four rooms, one store, one bath room, one latrine in the ground floor and four rooms, one kitchen, one bath room and one latrine in the first floor. Vide aforesaid agreement, vendor also agreed to sell two latrines towards the Padam Cottage and Rajesh Cottage, apart from approximately 336 square yards vacant site. It also emerge from the agreement that the plaintiff, who happened to be a purchaser, was already in occupation of three rooms, one bathroom and one latrine in the ground floor of the 'Padam Castle Quarters' agreed to be sold and the possession of the purchaser ::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 22 was to be considered as having been surrendered in part performance of the agreement. Vendor also agreed to handover vacant possession of one room in ground floor of 'Padam Castle .
Quarters', which was being used as office on or before 1st March, 1974 to the plaintiff. In terms of agreement, vendor was required to pay damages to the purchaser at the rate of Rs.10/- per day, in the event of failure on his part to handover the vacant possession as agreed till the vacant possession is handed over to him. It also emerge from aforesaid agreement that vendor received an amount of Rs.10,000/- at the time of execution of agreement i.e. 18.12.1973 with the further rider that purchaser i.e. the plaintiff would pay a further sum of Rs.5,000/- to the vendor on or before 25th February, 1974. The remaining amount of Rs.30,000/- was to be paid by the purchaser to the vendor at the time of registration of document of sale of the aforesaid property.
Contents of agreement further suggest that the purchaser i.e. the plaintiff was not liable to pay any rent to the vendor of the premises in his occupation including a room, the possession whereof was to be given on or before 1.3.1974.
28. Most importantly, in the agreement referred above, vendor agreed to get the property redeemed from the Cooperative Bank and thereafter execute the deed of sale in favour of the purchaser and in the event of failure on the part of the vendor to redeem the property within the aforesaid period and thereafter to execute the deed of sale in favour of the purchaser, he was liable to pay the purchaser double the amount i.e. Rs.30,000/-.
::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 23Similarly, in the event of failure on the part of the purchaser to fulfill his own part of the agreement, the money advanced by him to the vendor was to be forfeited. As per agreement, sale was to .
be completed within one year from the date of redemption of suit property, thereafter vendor would have no right, title or interest over the property agreed to be sold in favour of the plaintiff.
Perusal of Ex.PW-1/B i.e. copy of Jamabandi for the year 1950- 51, clearly suggests that property proposed to be sold by vendor was mortgaged with Cooperative Bank. Ex.PW-1/D is the receipt of Rs.10,000/-, issued by the vendor to the plaintiff on account of advance payment made to him by the plaintiff in terms of agreement referred above.
29. Perusal of agreement dated 15.1.1975, Ex.PW-1/E, suggests that since vendor failed to redeem 'Padam Castle Estate', as was undertaken by him vide agreement to sell dated 18.12.1973, Ex.PW-1/A, the parties agreed to get the sale deed executed within a period of further one year in furtherance of agreement dated 18.12.1973, Ex.PW-1/A. Vide aforesaid agreement, it was also disclosed that vendor had surrendered the possession of one room on the ground floor and had received a sum of Rs.15,000/- in conformity with the terms of agreement dated 18.12.1973. It also emerge from this agreement that apart from Rs.15,000/-, purchaser also paid Rs.3000/- to the vendor through his GPA Shri Surat Ram Jhingta. Vide agreement Ex.PW-1/E, parties agreed that in case vendor fails to execute and register a proper deed of sale after redeeming the entire ::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 24 property mortgaged with the Co-operative Bank, within a maximum period of one year, the vendor shall be liable to pay a sum of Rs.36,000/-, being double the amount of the sum already .
paid by the purchaser to the vendor, and a further sum of Rs.3,000/- as special damages.
30. In terms of agreements, referred hereinabove, vendor was obliged to execute sale deed on or before 15.1.1976 i.e. within one year from the date of agreement dated 15.1.1975 Ex.PW-1/E. Ex.PW-1/G is receipt of Rs.3000/-, issued by the vendor, having been received by him towards sale consideration in terms of agreement dated 15.1.1975. Similarly, vide Ex.PW-
1/H, receipt dated 25.2.1974 issued by the vender, an amount of Rs.5000/- was received by him on account of consideration in terms of agreement dated 18.12.1973. Most importantly, there are two receipts dated 12.4.1977 and 25.2.1978, Ex.PW-1/J & Ex.PW-1/K, issued by GPA of the vendor amounting to Rs.1000/-
and Rs.2000/- respectively having been received by vendor on account of advance in terms of agreement to sell 'Padam Castle Quarters' and land. Vide communication dated 27.12.1975, Ex.PW-1/L, the vendor, while inviting the attention of the plaintiff to the agreement executed inter se plaintiff and GPA of the vendor on 15.1.1975, again made a request that period of one year may be given to him so that by that time property is redeemed and sale deed is executed. Vide aforesaid letter, period of agreement was extended for further one year from 16.1.1976. Vide aforesaid communication, the vendor agreed to execute sale deed within ::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 25 one year from 16.1.1976 i.e. on or before 17.1.1976.
Subsequently, vide communication dated 25.2.1978, Ex.PW-1/N, GPA of the vendor, while acknowledging that he has received .
Rs.2000/- towards consideration in terms of agreement, extended time limit of agreement for another six months. Perusal of Ex.PW-1/P i.e. communication dated 18.12.1976, also suggests that the GPA of the vendor, merely by writing letter extended time for execution of sale deed in terms of agreement till June, 1977. It is also pertinent to take note of communication dated 8.6.1973 i.e. Ex.PZ, perusal whereof suggests that the vendor had good relations with plaintiff and on some occasion he had been taking financial help from the plaintiff.
31. Both the Courts below, while coming to the conclusion that time was essence of the contract, only took into consideration Ex.PW-1/A and Ex.PW-1/E i.e. agreements dated 18.12.1973 and 15.1.1975. Both the Courts below, taking note of para-6, as contained in Ex.PW-1/A, came to the conclusion that since property in question was not redeemed within a period of one year, therefore, the plaintiff was only entitled to Rs.30,000/-, i.e. double the amount he had paid in advance to the vendor.
Learned Court further concluded that in terms of agreement Ex.PW-1/E, plaintiff was entitled to Rs.40,000/- and could only claim Rs.40,000/- since property was not redeemed within the maximum period of one year. In nutshell, both the Courts below came to the conclusion that there was a default clause in both the agreements i.e. time was essence of both the agreements.
::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 26Most interestingly, Courts below did not take into consideration documents Ex.PW-1/C, Ex.PW-1/M and Ex.PW-1/O terming them to be unilateral extensions.
.
32. This Court, after having carefully perused documents i.e. Ex.PW-1/L, Ex.PW-1/M, Ex.PW-1/N, Ex.PW-1/O and Ex.PW-
1/P, has no hesitation to conclude that the vendor repeatedly requested the plaintiff to extend the time for execution of sale deed in terms of agreements Ex.PW-1/A and Ex.PW-1/E. Similarly, perusal of Ex.PW-1/G, PW-1/H, Ex.PW-1/J and Ex.PW-1/K further suggests that the plaintiff had been depositing certain amounts, after expiry of time as specified in agreement Ex.PW-1/A, which were duly acknowledged by the vendor in communications Ex.PW-1/L to Ex.PW-1/O. Hence, finding of the Courts below that extension of time, as referred in documents Ex.PW-1/C, Ex.PW-1/M and Ex.PW-1/O, is unilateral extension, does not appear to be correct, rather, as has been taken note above by this Court after having perused Ex.PZ i.e. communication dated 8.6.1973, it clearly emerge from the record that the plaintiff had good relations with the vendor, who had been taking financial help from the plaintiff from time to time.
Learned Courts below, taking note of admission having been made by the plaintiff, while appearing as PW-1, in his cross-
examination that he never expressed his acceptance to the defendants qua the letters Ex.PW-1/C, Ex.PW-1/M and Ex.PW-
1/O, also came to the conclusion that it cannot be said that term ::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 27 of the agreements, Ex.PW-1/A and Ex.PW-1/E, was extended by the vendor after expiry of period mentioned therein.
33. True, it is that there is no letter/communication .
either written by vendor himself or through his attorney after 25.2.1978 suggestive of the fact that time was further sought to be extended by him for execution of sale deed in terms of agreements Ex.PW-1/A and Ex.PW-1/E, but, similarly there is no document led on record by the defendants suggestive of the fact that after 1978, communication, if any, was sent to the plaintiff, intimating therein intention of defendants either to execute the sale deed or to terminate the contract in terms of conditions contained in Ex.PW-1/A and Ex.PW-1/E. Defendants placed on the record Ex.DW-1/A, which was allegedly sent on 20.6.1992, perusal whereof suggests that Shri Surat Ram Jhingta, GPA of vendor Raj Kumar Rajinder Singh of Bushahr sent a communication to the plaintiff, intimating therein that Raj Kumar and his family does not intend to sell property in terms of agreement allegedly executed by the vendor. Vide aforesaid communication, plaintiff was further advised to settle the accounts. In the aforesaid communication, defendants again acknowledged receipt of Rs.18,000/- from plaintiff on account of advance having been given by him towards sale consideration qua the property intended to be sold by the vendor in terms of agreements Ex.PW-1/A and Ex.PW-1/E.
34. Interestingly, in the aforesaid communication, defendants admitted that since they had received an amount of ::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 28 Rs.18,000/-, they never demanded rent qua the property occupied by the plaintiff, possession whereof was otherwise surrendered to him by the vendor at the time of execution of .
agreements Ex.PW-1/A and Ex.PW-1/E. Whether aforesaid communication was received by the plaintiff or not is required to be examined in light of evidence adduced on record by the parties. But, otherwise also, if plea, having been taken by the learned counsel for the defendants, which was otherwise accepted by Courts below, is taken into consideration that intention of the defendants for not selling the property in terms of agreements Ex.PW-1/A and Ex.PW-1/E was conveyed to the plaintiff in the year 1992, limitation, if any, for filing suit for specific performance was required to be computed by the Courts below from the date of delivery of aforesaid letter. As per own case of the defendants, letter dated 20.6.1992 was sent through peon book, but in the instant case neither peon book was produced to prove the factum with regard to issuance of letter by Shri Surat Ram Jhingta nor receipt, if any, by the plaintiff; namely; Shiv Saran Dass. Since it was admitted case of the defendants that letter dated 20.6.1992 Ex.DW-1/A was got served upon the plaintiff through peon book, it was incumbent upon the defendants to produce peon book, especially when factum with regard to delivery of letter dated 20.6.1992 was specifically denied by the plaintiff. Since aforesaid document was not legally proved on record, the Courts below erred in concluding that suit is barred by limitation. Moreover, letter was issued by GPA of the ::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 29 vendor Shri Raj Kumar Rajinder Singh and since GPA and vendor were not available to prove the contents of letter, statement having been made by DW-1 Rajeshwar Singh was required to be .
dealt with carefully by the Courts below while ascertaining the factum with regard to issuance of letter dated 20.6.1992. DW-1 in his cross-examination categorically admitted that he does not know whether Ex.DW-1/A stands entered in register or not. He also admitted that there are no signatures of the plaintiff on Ex.DW-1/A.
35. After having carefully perused documents Ex.PW-1/L to Ex.PW-1/P; this Court finds substantial force in the arguments of Shri Bhupender Gupta, learned Senior Counsel representing the plaintiff, that date for performance, which was initially stipulated in Ex.PW-1/A and Ex.PW-1/E, was repeatedly extended by the vendor and as such plaintiff rightly not initiated any steps for filing suit for specific performance after expiry of date as mentioned in Ex.PW-1/A and Ex.PW-1/E. This Court also finds force in the arguments of Shri Gupta that since there is specific mention of amount admittedly paid by the plaintiff in the communications Ex.PW-1/L to Ex.PW-1/P sent by the vendor, while extending time of execution of sale deed in terms of agreements Ex.PW-1/A and Ex.PW-1/E, there was no occasion, as such, for the plaintiff to send specific communication accepting the request/prayer of extension of time having been made by the vendor.
::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 3036. At this stage, it would be profitable to take note of judgment passed by Hon'ble the Supreme Court in S.Brahmanand and Others vs. K.R. Muthugopal (Dead) and .
Others, (2005)12 SCC 764, wherein Hon'ble Apex Court has held as under:-
"16. It would be useful to set out the provisions of Article 54 before critically appraising the arguments presented to us on both sides.
"Description of Period of Time from
suit limitation which period
begins to run
54. For specific Three The date fixed for
performance years the performance,
r of contract. or, if no such
date is fixed,
when the plaintiff
has notice that
performance is
refused"
17. Though, at first blush, it may appear that the use of the expression "date" used in this Article of the Limitation Act, 1963 is suggestive of a specific date in the calendar, we cannot forget the judicial interpretation of this expression over a long period of time. Different High Courts took different views of the matter, which has been a subject matter of controversy. Some interpreted the expression strictly and literally, while others have taken an extended view.
18. In Kashi Prasad v. Chhabi Lal, AIR 1933 All.410(2), the High Court dealing with Article 113 of the Limitation Act, 1908, which was in pari materia with Article 54 of the Schedule to the Limitation Act, 1963, took the view that the force of the word "fixed" implies that the date should be fixed definitely and should not be left to be gathered from surrounding circumstances of the case. It must be a date clearly mentioned in the contract whether the said contract be oral or in writing.
19. In Alopi Parshad v. Court of Wards, AIR 1938 Lah.23, also the court was concerned with Article 113 of the Limitation Act, 1908. A suit ::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 31 for specific performance was brought on an agreement of sale where the time for performance of the contract was "after passing of a decree". Though no date for performance was fixed for the agreement, the trial Court had opined that time must be held to have begun to run from the date on which the decree was .
passed in view of the maxim certum est quod certum reddi potest ("That is sufficiently certain which can be made certain"). The Lahore High Court was of the view that statutes of limitation must be strictly construed and that the respondents before it had failed to bring a case specifically within the purview of the first part of Article 113 and that the case did not fall within the first part but fell within the second part of Article 113. The judgment of the Allahabad High Court in Kashi Prasad was approvingly referred to and followed. This judgment was taken in appeal before the Privy Council and approved by the Privy Council in Lala Ram Sarup v. Court of Wards , AIR 1940 PC
19.
20. In Kruttiventi Mallikharjuna Rao v. Vemuri Pardhasaradhirao, AIR 1944 Mad.218, a contract was entered into on 18.7.1934, and the vendor promised to execute the sale deed when both his brothers who were studying elsewhere returned to the village for the next vacation, i.e., in May-June 1935. The High Court held (AIR p.218h) that this was "too indefinite to be regarded as fixing a "date" for the performance of the contract and the period of limitation must be computed from the date of refusal to perform".
21. In R. Muniswami Goundarv. B.M. Shamanna Gouda, AIR 1950 Mad.820, interpreting the expression "date fixed" in Article 113 of the Limitation Act, 1908 the doctrine of id certum est quodi certum reddi potest was pressed into service along with its exposition in Broom's Legal Maxims and it was held that it was wide enough to include a date which though at the time when the contract was made was not known, but could be ascertained by an event which subsequently was certain of happening.
22. In Hutchegowda v. H.M. Basaviah, AIR 1954 Mys.29, upholding the view in Muniswami Goundar, it was held that an agreement to execute the sale deed after the 'Saguvali chit' is granted fell within the first part of Article 113 of the Limitation Act, 1908.
::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 3223. In Purshottam Sava v. Kunverji Devji, AIR 1954 Sau.104, the judgment of the Madras High Court in R. Muniswami Goundar was followed and it was held that the expression "date fixed" can be interpreted as meaning either the date fixed expressly or a date that can be fixed with reference to a future event which is certain to .
happen.
24. In Lakshminarayana Reddiar v. Singaravelu Naicker, AIR 1963 Mad.24, it was held that the phrase occurring in the third column of Article 113 of the Limitation Act, 1908 "the date fixed for the performance" must be not only a date which can be identified without any doubt as a particular point of time, but it should also be a date which the parties intended should be the date when the contract could be performed.
25. In Shrikrishna Keshav Kulkarni v. Balaji Ganesh Kulkarni, AIR 1976 Bom.342, the agreement for sale of a property stated that the sale was to be executed after the attachment which the rcreditors had brought, was raised. Noticing the fact that there was absence of any indication as to when the attachment would be raised, the court treated it as a case in which no date was fixed for performance of the contract and, therefore, falling within the second part of Article 54 of the Limitation Act, 1963.
26. P. Sivan Muthiah v. John Sathiavasagam, (1990)1 MLJ 490, arose from a suit for specific performance with an alternative prayer for recovery of advance paid under the agreement of sale. Referring to Article 54 of the Limitation Act, 1963 the court took the view that the expression "date fixed" could mean either the date expressly fixed or the date that can be fixed with reference to a future event, which is certain to happen. If the date is to be ascertained depending upon an event which is not certain to happen, the first part of Article 54 would not be applicable, and in such an eventuality, it is only the latter part of Article 54 that could be invoked by treating it as a case in which no date had been fixed for performance and the limitation would be three years from the date when the plaintiff had notice that performance is refused. This was a case where performance was due after the tenants in the property had been vacated. The court took the view that since eviction of the tenants was an uncertain event, the time must be deemed to have run only from the date when the plaintiffs ::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 33 had notice that the performance had been refused by the defendants.
27. In Ramzan v. Hussaini, (1990)1 SCC 104, a suit was filed for specific performance of a contract of sale in respect of a house. The property was mortgaged and according to the plaintiff, the .
defendant had agreed to execute a deed of sale on the redemption of the mortgage by the plaintiff herself, which she did in 1970. In spite of her repeated demands, the defendant failed to perform his part, which resulted in a suit being filed. The question that arose before this Court was whether the agreement was one in which the date was "fixed" for the performance of the agreement or was one in which no such date was fixed. This Court answered the question in the affirmative by holding that, although a particular calendar date was not mentioned in the document and although the date was not ascertainable originally, as soon as the plaintiff redeemed the mortgage, it became an ascertained date. This Court also agreed with rthe view expressed in the Madras High Court in R. Muniswami Goundar and held that the doctrine id certum est quod certum reddi potest is clearly applicable. It also distinguished Kruttiventi Mallikharjuna Rao and Kashi Prasad (supra) as cases that arose out of their peculiar facts.
28. In Tarlok Singh v. Vijay Kumar Sabharwal, (1996)8 SCC 367, the parties by agreement determined the date for performance of the contract, which was extended by a subsequent agreement stipulating that the appellants shall be required to execute a sale deed within 15 days from the date of the order vacating the injunction granted in a suit. The suit was initially dismissed and, thereafter, a review application was also dismissed as withdrawn on 22.3.1986. On 23.12.1987 a suit was filed for perpetual injunction. In that suit, an application came to be made under Order 6 Rule 17 CPC for converting it into a suit for specific performance of an agreement dated 18.8.1984. This amendment was allowed on 25.8.1989. It was held that since the amendment was ordered on 25.8.1989, the crucial date for examining whether the suit was barred by limitation was 25.8.1989. Since the injunction was vacated when the original suit was initially dismissed, and the review application came to be dismissed on 22.3.1986, it was held that it was a situation covered by the first part of Article 54 and, in any ::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 34 event, on 25.8.1989 the suit was barred by limitation."
(pp.772-775) .
37. Hon'ble Apex Court in Panchanan Dhara and Others vs. Monmatha Nath Maity (Dead) Through LRs. and Another, (2006)5 SCC 340, has specifically held that "a plea of limitation is a mixed question of law and fact. The question as to whether a suit for specific performance of contract will be barred by limitation or not would not only depend upon the nature of the agreement but also on the conduct of the parties and also as to how they understood the terms and conditions of the agreement."
In this judgment, Hon'ble Apex Court has further held that while determining the applicability of the first or the second part of Article 54 of the Limitation Act, 1963, the court will firstly see as to whether any time was fixed for performance of the agreement of sale and if it was so fixed, whether the suit was filed beyond the prescribed period unless any case of extension of time for performance was pleaded and established. When, however, no time is fixed for performance of contract, the court may determine the date on which the plaintiff had notice of refusal on the part of the defendant to perform the contract and in that event the suit is required to be filed within a period of three years therefrom. Most importantly, in the judgment, referred hereinabove, it has been held that in a suit for specific performance of contract in respect of any immovable property, time would ordinarily not be the essence of the contract.
::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 3538. In Panchanan Dhara's case supra, the Hon'ble Apex Court has also held as under:
"20. Contention of Mr. Mishra as regard the .
applicability of the first or the second part of Article 54 of the Limitation Act will have to be judged having regard to the aforementioned findings of fact. A plea of limitation is a mixed question of law and fact. The question as to whether a suit for specific performance of contract will be barred by limitation or not would not only depend upon the nature of the agreement but also the conduct of the parties and also as to how they understood the terms and conditions of the agreement. It is not in dispute that the suit for specific performance of contract would be governed by Article 54 of the Limitation Act, 1963. While determining the applicability of the first or the second part of the said provision, the court will firstly see as to whether any time was fixed for performance of r the agreement of sale and if it was so fixed, whether the suit was filed beyond the prescribed period unless any case of extension of time for performance was pleaded and established. When, however, no time is fixed for performance of contract, the court may determine the date on which the plaintiff had notice of refusal on the part of the defendant to perform the contract and in that event the suit is required to be filed within a period of three years therefrom.
21. In this case, before the Trial Court, the parties proceeded on the basis that the Second Respondent herein refused to execute and register a deed of sale in terms of the said agreement on 21.8.1985. The courts below have also arrived at a finding of fact that the time for performance of the said agreement for sale had all along been extended and even as on 16.3.1985, a Director of the second respondent assured the first respondent that it would be honored. In a suit for specific performance of contract in respect of any immovable property, time would ordinarily not be the essence of the contract. The appellant herein also did not raise any plea to the said effect.
22. A bare perusal of Article 54 of the Limitation Act would show that the period of limitation begins to run from the date on which the contract was to be specifically performed. In terms of Article 54 of the Limitation Act, the period prescribed ::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 36 therein shall begin from the date fixed for the performance of the contract. The contract is to be performed by both the parties to the agreement. In this case, the first respondent was to offer the balance amount to the Company, which would be subject to its showing that it had a perfect title over the property. We have .
noticed hereinbefore that the courts below arrived at a finding of fact that the period of performance of the agreement has been extended. Extension of (sic time for performance of a) contract is not necessarily to be inferred from written document. It could be implied also. The conduct of the parties in this behalf is relevant. Once a finding of fact has been arrived at, that the time for performance of the said contract had been extended by the parties, the time to file a suit shall be deemed to start running only when the plaintiff had notice that performance had been refused. Performance of the said contract was refused by the Company only on 21.8.1985. The suit was filed soon thereafter. The submission of Mr. Mishra that rthe time fixed for completion of the transaction was determinable with reference to the event of perfection of title of the Second Respondent cannot be accepted. The said plea had never been raised before the courts below. Had such a plea been raised, an appropriate issue could have been framed. The parties could have adduced evidence thereupon. Such a plea for the first time before this Court cannot be allowed to be raised. Even otherwise on a bare perusal of the agreement for sale dated 18.4.1971, it does not appear that it was intended by the parties that the limitation would begin to run from the date of perfection of title.
31. In view of the aforementioned pronouncements of this Court, we are of the opinion that the plea raised by the learned counsel for the appellant that the suit was barred by limitation cannot be accepted as all the courts have arrived at a finding of fact that the period for execution of the deed of sale had been extended."
(pp.347-350)
39. In the case at hand, plaintiff had to pay the balance amount to the vendor at the time of execution of sale deed, which was to be executed by the vendor after redemption of mortgage of ::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 37 the property. As per agreements Ex.PW-1/A and Ex.PW-1/E, it was obligatory on the part of vendor to get the property redeemed from the Co-operative Bank within one year from the date of .
agreement and thereafter he had to execute the sale deed.
Though, perusal of agreements, as have been observed above, suggests that sale deed, after redemption of property in question, was to be executed within specified period as stipulated in agreements Ex.PW-1/A and Ex.PW-1/E, but definitely execution of sale deed was subject to redemption of property from the concerned bank. Admittedly, there is no further extension of time by way of agreement, after execution of agreements Ex.PW-1/A and Ex.PW-1/E, but there are ample documents on record suggestive of the fact that the vendor had been extending time for execution of sale deed in furtherance of original agreement Ex.PW-1/A. It is also not in dispute that in lieu of repeated extensions asked for by the vendor, certain amount was paid by the plaintiff towards sale consideration, as agreed in agreements.
Since, the vendor kept on extending period for execution of sale deed in terms of original agreements after expiry of period as mentioned in agreement dated 15.1.1975 Ex.PW-1/E, this Court is inclined to accept the contention having been put forth by learned Senior Counsel representing the plaintiff that question whether suit for specific performance is barred by limitation or not would not only depend upon nature of the agreement but also on the conduct of the parties.
::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 3840. In the instant case, this Court, after having carefully perused the communications Ex.PW-1/L to Ex./PW-1/O issued by the vendor, has no hesitation to conclude that the vendor had .
repeatedly extended time for execution of sale deed and at no point of time he conveyed to the plaintiff with regard to his intention, if any, of not selling the property in terms of original agreement Ex.PW-1/A. Since, after expiry of time period specified in agreements Ex.PW-1/A and Ex.PW-1/E, vendor himself had been requesting for extension of time coupled with the fact that the plaintiff had good relations with the vendor, there was no occasion, as such, for plaintiff to send communication specifically accepting therein the request for extension of time made by the vendor. Rather, it can safely be inferred from the communication sent by the vendor that requests, repeatedly made by him, were accepted and acted upon by the plaintiff.
41. At this juncture, this Court finds it necessary to refer conditions No.5 and 6 of the agreement dated 18.12.1973, Ex.PW-1/A, wherein it has been stipulated that vendor shall redeem the suit property within a period of one year and thereafter he would execute the deed of sale in favour of the purchaser. Conditions No.5 and 6 are reproduced hereinbelow:-
"5. that the vendor has mortgaged the property agreed to be sold alongwith Padam Castle etc. with the Himachal Pradesh State Cooperative Bank, in the sum of Rs.55,000/- (Rs.Fifty Five thousands). The vendor shall redeem the said property within a period of one year and soon thereafter he would execute the deed of sale in favour of the purchaser. Besides the aforesaid encumberance, the entire estate is free of any other encumberance.::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 39
6. That in case the vendor fails to redeem the property within the aforesaid period and consequently does not execute the deed of sale in favour of the purchaser, the vendor shall be liable and the purchaser shall be entitled to receive the double amount i.e. Rs.30,000/-
.
(Rs.Thirty thousands) from the vendor. In case the purchaser fails to fulfill his own part of the agreement as contained above, the money advanced by him to the vendor shall stand forfeited. The sale will be completed within one year from today. After the completion of the sale the vendor shall have no right or title in the property agreed to be sold and the purchaser shall exercise all rights of an owner including easementary and such other rights."
42. Careful perusal of aforesaid conditions clearly suggests that vendor was under obligation to get the suit property redeemed within a period of one year, where-after he had to execute the deed of sale in favour of purchaser. Time period/limit, if any, stipulated in para-5 of agreement is/was with regard to redemption of property and not for the execution of sale deed. Rather, execution of sale deed is/was purely subject to redemption of property, hence this Court sees valid reasons to differ with the findings returned by both the Courts below that time was essence of the contract. Similarly, condition contained in para-6 of the agreement suggests that in the event of failure on the part of the vendor to get the suit property redeemed within aforesaid period i.e. one year, plaintiff is/was well within its right to receive double the amount given by him in advance. Conjoint reading of conditions contained in paras 5 and 6 nowhere suggests that sale deed in terms of agreement, was to be executed strictly within a period of one year, rather within a period of one ::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 40 year, vendor was bound to get the property redeemed and thereafter he had to execute the sale deed. True, it is that in the event of failure on the part of vendor to redeem the property .
within the period as prescribed in para-5 of the agreement, purchaser i.e. plaintiff is/was entitled to receive double the amount advanced by him to the vendor. But, by no stretch of imagination, it can be said that sale deed could only be executed within a period of one year from the date of agreement i.e. 18.12.1973, rather execution of sale deed was subject to redemption of the property, which vendor had agreed to get redeemed within a period of one year.
43. Similarly, perusal of agreement, dated 15.1.1975, Ex.PW-1/E, suggests that since vendor failed to get the property redeemed from the Co-operative Bank, it was agreed inter se parties in furtherance of agreement to sell executed on 18.12.1973 Ex.PW-1/A that deed of sale would be executed or registered by vendor within a further maximum period of one year and the terms and conditions, as contained in the agreement dated 18.12.1973, would be fully complied with. Most importantly, in the agreement dated 15.1.1975, Ex.PW-1/E, parties agreed that in case the vendor fails to execute and register deed of sale after redeeming the entire property within a maximum period of one year, the vendor shall be liable to pay a sum of Rs.36,000/- being double the amount of sum already paid by the purchaser to the vendor. At this stage, it would be profitable to reproduce relevant part of agreement Ex.PW-1/E:-
::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 41".... .... .... The purchaser has also paid a further sum of Rs.3,000/- (Rs.Three thousand only) to the vendor through Shri Surat Ram Jhingta, General Attorney of the Vendor against a receipt issued by him in this behalf. It is further agreed between the parties that in case the vendor fails to execute and register a proper deed of sale .
after redeeming the entire property mortgaged with the Himachal Pradesh State Cooperative Bank Simla, within a maximum period of one year, the vendor shall be liable to pay a sum of Rs.36,000/- (Rs.Thirty Six thousand only) being double the amount of the sum already paid by the purchaser to the vendor and a further sum of Rs.4,000/- as special damages. As such the vendor shall be liable to pay a sum of Rs.40,000/- (Rs.Forty thousand only) on all on account of damages in terms of the agreement."
44. Careful perusal of aforesaid stipulation, as contained in agreement Ex.PW-1/E on 15.1.1975, clearly suggests that sale deed was required to be executed by the vendor after redemption of the entire property mortgaged with Cooperative Bank within a maximum period of one year. Conjoint reading of contents of aforesaid agreements Ex.PW-1/A and Ex.PW-1/E clearly suggests that execution of sale deed was subject to redemption of suit property.
45. At the cost of repetition, it may be observed that the execution of sale deed was totally dependant upon the redemption of property. This Court, after having carefully perused the aforesaid agreements, is of the view that vendee i.e. plaintiff after completion of one year in the event of non-
execution of sale deed in terms of agreement referred above could always claim double the amount of advance paid by him, but, it is/was not open for the vendor, after expiry of one year from the date of agreement, to claim that the party ::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 42 is/was not liable to execute the sale deed in terms of agreement. Hence, this Court has no hesitation to conclude that both the Courts below, while dismissing the suit of the .
plaintiff, misconstrued, misinterpreted and misread the terms and conditions of agreements to sell Ex.PW-1/A and Ex.PW-1/E, while coming to the conclusion that time was essence of the contract.
46. In the instant case, as clearly emerge from bare reading of agreements, referred hereinabove, limitation for filing suit was required to be computed from the date when factum with regard to redemption of property was either conveyed to the purchaser by vendor or from the date when the plaintiff acquired knowledge of redemption of property by the vendor. Since, in the instant case, sale deed was to be executed within one year from the date of redemption of the property, as has been held above, Courts below ought to have decided issue of limitation, taking into consideration date of redemption of property mortgaged with the Cooperative Bank.
47. At the cost of repetition, it may again be stated that there are numerous documents available on record suggestive of the fact that vendor had been requesting for extension of time to execute the sale deed since property could not be redeemed by him within stipulated period as agreed inter se parties by way of affidavits referred hereinabove. As per plaintiff, defendants started raising ::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 43 building/hotel on the land adjoining to the suit property, which gave rise to apprehension in his mind that the defendants had redeemed the mortgage and accordingly vide .
communication dated 13.9.2001 Ex.PW-1/Q requested the defendants to intimate the date on which sale deed is to be executed on the basis of agreements Ex.PW-1/A and Ex.PW-
1/E executed by their predecessor. Since defendants failed to respond to aforesaid communication sent by the plaintiff, plaintiff got a legal notice dated 19.10.2001, Ex.PW-1/R, served upon the defendants calling upon them to execute the sale deed in respect of property detailed in agreements dated 18.12.1973 and 15.1.1975 Ex.PW-1/A and Ex.PW-1/E respectively within a period of 15 days. Vide aforesaid communication dated13.9.2001, plaintiff specifically stated that recently a hotel building has been raised by the defendants on the property adjoining the property agreed to be sold by the vendor and as such he has reason to believe that the property stands redeemed from the mortgage. Vide aforesaid notice dated 19.10.2001, plaintiff reminded the defendants that part of sale consideration stood already paid, whereas remaining was payable by him at the time of registration of the sale deed. Perusal of acknowledgement receipts, Ex.PW-1/W, Ex.PW-1/X, Ex.PW-1/Y and Ex.PW-
1/Z, placed on record, clearly suggests that aforesaid communications were duly received by the defendants.
Plaintiff, after having come to know the factum with regard ::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 44 to redemption of property, immediately by way of aforesaid communications requested/reminded the defendants to get the sale deed executed in terms of agreement. Vide aforesaid .
communication, he specifically acknowledged that remaining amount in terms of agreement is to be paid at the time of execution of the sale deed; meaning thereby that by sending aforesaid communication, he expressed his readiness and willingness to get the sale deed executed. In this regard reliance is placed upon the judgment of Hon'ble Supreme Court in Pushparani S.Sundaram and Others vs. Pauline Manomani James (Deceased) and Others, (2002)9 SCC 582, wherein the Hon'ble Court has held as under:-
"5. For this, the appellants rely on two circumstances, one that immediately after the exemption was given by the Ceiling Authorities on the 31.3.1982, the present suit was filed in April, 1982, and the other the tendering of further sum of Rs. 5,000/- to the defendant after execution of the agreement of sale. He also reiterates with reference to Para 11 of the plaint which pleads that the appellant was and is ready and willing to perform his part of the contract. So far these are being a plea that they were ready and willing to perform their part of the contract is there in the pleading. We have no hesitation to conclude, that this by itself is not sufficient to hold that the appellants were ready and willing in terms of Section 16(c) of the Specific Relief Act. This requires not only such plea but also proof of the same. Now examining first of the two circumstances, how could mere filing of this suit, after exemption was granted could be a circumstance about willingness or readiness of the plaintiff. This at the most could be the desire of the plaintiff to have this property. It may be for such a desire this suit was filed raising such a plea. But Section 16(c) of the said Act makes it clear that mere plea is not sufficient, it has to be proved.::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 45
6. Next and the only other circumstance relied is about the tendering of Rs.5,000/, which was made on the 2.3.1982 which was even prior to the grant of the exemption. Such small feeder to the vendor is quite often made to keep a vendor in good spirit. In this case only other payment made by the plaintiff was Rs.5,000/- at the time .
of execution of the agreement of sale. Thus, total amount paid was insignificantly short of the balance amount for the execution of the sale deed. Thus, in our considered opinion the said two circumstances taken together, is too weak a filament to stand even to build an image of readiness and willingness. Section 16(c) of the Specific Relief Act, requires that not only there be a plea of readiness and willingness but it has to be proved so. It is not in dispute except for a plea there is no other evidence on record to prove the same except the two circumstances. It is true that mere absence of plaintiff coming in the witness box that by itself may not be a factor to conclude that he was not ready and willing in a given a case as erroneously concluded by the High Court. But in the present case, not only the plaintiff has not come in the witness box, but not even sent any communication or notice to the defendant about his willingness, to perform his part of the contract. In fact no evidence is led to prove the same." (p.584)
48. Hon'ble Apex Court in aforesaid judgment has held that Section 16(c) of the Specific Relief Act requires that not only there be a plea of readiness and willingness but has to be proved so. In the case at hand plaintiff after having come to know the factum with regard to redemption of mortgage, sent two communications Ex.PW-1/Q and Ex.PW-
1/R calling upon the defendants to execute sale deed and as such finding of Courts below is not correct that there is no readiness and willingness on the part of the plaintiff.::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 46
49. Hon'ble Apex Court in Bal Krishan & Anr. vs. Bhagwan Dass (Dead) by L.Rs & Ors, AIR 2008 SC 1786 has held as under:-
.
"8. Section 16 of the Specific Relief Act, 1963 (hereinafter referred to as 'the Act') corresponds with Section 24 of the old Act of 1877 which lays down that the person seeking specific performance of the contract, must file a suit wherein he must allege and prove that he has performed or has been ready and willing to perform the essential terms of the contract, which are to be performed by him. The specific performance of the contract cannot be enforced in favour of the person who fails to aver and prove his readiness and willingness to perform essential terms of the contract. Explanation (ii) to clause (c) of Section 16 further makes it clear that plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. The rcompliance of the requirement of Section 16(c) is mandatory and in the absence of proof of the same that the plaintiff has been ready and willing to perform his part of the contract suit cannot succeed. The first requirement is that he must aver in plaint and thereafter prove those averments made in the plaint. The plaintiff's readiness and willingness must be in accordance with the terms of the agreement. The readiness and willingness of the plaintiff to perform the essential part of the contract would be required to be demonstrated by him from the institution of the suit till it is culminated into decree of the court. It is also settled by various decisions of this Court that by virtue of Section 20 of the Act, the relief for specific performance lies in the discretion of the court and the court is not bound to grant such relief merely because it is lawful to do so. The exercise of the discretion to order specific performance would require the court to satisfy itself that the circumstances are such that it is equitable to grant decree for specific performance of the contract. While exercising the discretion, the court would take into consideration the circumstances of the case, the conduct of parties, and their respective interests under the contract. No specific performance of a contract, though it is not vitiated by fraud or misrepresentation, can be granted if it would give an unfair advantage to the plaintiff and where the performance of the contract would involve some hardship on the ::: Downloaded on - 11/09/2017 13:06:10 :::HCHP 47 defendant, which he did not foresee. In other words, the court's discretion to grant specific performance is not exercised if the contract is not equal and fair, although the contract is not void." (p.1790) .
50. Plaintiff specifically pleaded in the plaint that he was always ready and willing to perform his part by paying balance payment. Plaintiff in his statement before Court again reiterated that he had no shortage of money and he was ready and willing to perform his part by paying balance payment and as such there is compliance of Section 16(c) of the Specific Performance Act.
51. It appears that learned Courts below brushed aside the aforesaid communications, taking note of admission, having been made by PW-1 plaintiff Shiv Saran Dass in his cross-examination that the defendants had started constructing hotel since last six years. He also admitted that the defendants started constructing the hotel without giving notice to him. Since statement of plaintiff was recorded on 6.6.2002, Courts below came to the conclusion that construction was commenced somewhere in the year 1996 by the defendants and as such factum, if any, with regard to redemption of property had come to the knowledge of the plaintiff in the year 1996 and as such he could have filed the suit up to year 1999.
52. Aforesaid findings having been returned by the learned first appellate Court appear to be totally erroneous solely for the reasons that construction, if any, raised by the ::: Downloaded on - 11/09/2017 13:06:11 :::HCHP 48 defendants was on the property adjoining to the suit property and not on the property intended to be sold by the vendor by way of agreements Ex.PW-1/A and Ex.PW-1/E. .
Plaintiff himself in his plaint has stated that since defendants started raising construction over the land adjoining to suit property, he apprehended that suit property stands redeemed, but fact remains that the suit property came to be redeemed only in the year 2001.
53. PW-3, Shri Ramesh Chand, who at that relevant time was Manager, H.P. State Cooperative Bank, Rampur Bushehr, in his statement recorded on 15.1.2003 categorically stated that as per record, the vendor; namely;
Raj Kuamr Rajinder Singh, had taken loan on 18.9.1964, which was cleared on 8.9.2001. He also stated that property named as 'Padam Castle, Rajesh Cottage and Padam Cottasge' stood mortgaged with the bank and it was redeemed on 8.9.2001. Even in his cross-examination, he categorically admitted that loan account of the vendor was closed on 8.9.2001. There is nothing in his cross-
examination from where it can be inferred that the defendants were able to extract anything contrary which aforesaid witness stated in his examination-in-chief.
Similarly, DW-1, defendant Rajeshwar Singh, in his cross-
examination categorically admitted that suit property was redeemed on 8.9.2001.
::: Downloaded on - 11/09/2017 13:06:11 :::HCHP 4954. Hon'ble Apex Court in Panchanan Dhara's case supra has specifically held that bare perusal of Article 54 of Limitation Act suggests that period of limitation begins .
to run from the date on which the contract was to be specifically performed. Hon'ble Apex Court has further held that in terms of Article 54 of the Act, period prescribed therein shall begin from the date fixed for performance of the contract. Most importantly, in the case referred above, Hon'ble Apex Court has held that the extension of contract is not necessarily to be inferred from written document. It could be implied also. Their Lordships in the case referred above held that the conduct of the parties in this behalf is relevant. Once a finding of fact has been arrived at, that the time for performance of the said contract had been extended by the parties, the time to file a suit shall be deemed to start running only when the plaintiff had notice that performance had been refused.
55. In the case at hand, as has been already concluded hereinabove that stipulation of time, if any, in the agreements was to commence after redemption of property by vendor from the bank concerned and sale deed was fully dependant upon the redemption of property which was admittedly redeemed on 8.9.2001. There is no document, as has been discussed hereinabove, suggestive of the fact that communication, if any, was ever sent by the vendor-
predecessor-in-interest of the defendants or thereafter by ::: Downloaded on - 11/09/2017 13:06:11 :::HCHP 50 defendants intimating therein factum with regard to redemption of suit property to enable the plaintiff to do his part in terms of agreement in question. Though, defendants .
by placing on record Ex.DW-1/A, letter dated 2.6.1992, made an attempt to prove on record that intention of defendants in not selling the property in question was conveyed to the plaintiff, but as has been observed above, aforesaid communication dated 2.6.1992 was never proved in accordance with law and thus no reliance, if any, could be placed on the same by the Courts below while determining the period of limitation on the basis of same. This Court could lay its hand to one document which is though not exhibited, but the same has been marked as 'mark-B' dated 28.5.1988 available at page 119 of record, which itself suggests that even till 28.5.1988 defendants had been acknowledging that they have executed agreement to sell with the plaintiff to sell the property in question. Vide aforesaid communication defendants have also acknowledged that they have received Rs.19,000/- in total.
56. Hence, this Court, after having bestowed its thoughtful consideration to the pleadings, evidence vis-à-vis impugned judgments and decrees passed by both the Courts below, is of the view that both the Courts below erred in concluding that suit for specific performance having been filed by the plaintiff is/was barred by limitation. Findings returned by Courts below, after having interpreted ::: Downloaded on - 11/09/2017 13:06:11 :::HCHP 51 conditions contained in Ex.PW-1/A and Ex.PW-1/E as well as correspondence Ex.PW-1/L, Ex.PW-1/M and Ex.PW-1/O, are erroneous and as such being not based upon proper .
appreciation of evidence deserve to be quashed and set aside. Both the Courts below also erred in concluding that plaintiff was not ready and willing to perform his part of contract because after having perused Ex.PW-1/Q and Ex.PW-1/R it is quite apparent that plaintiff, immediately after having come to know the fact with regard to redemption of property, issued two communications to the defendants requesting them to apprise him the time when sale deed is to be executed in terms of agreements Ex.PW-1/A and Ex.PW-
1/E.
57. Since it stands duly proved from the perusal of Ex.PW-1/A and Ex.PW-1/E that possession of purchaser/plaintiff, who at that relevant time was tenant, was to be considered as having been surrendered in the part performance of the agreements, findings returned by both the Courts below that the status of appellant-plaintiff over the suit property is in the capacity of tenant is erroneous and perverse and as such same deserves to be set aside.
58. At this stage, it may be noticed that learned counsel representing the plaintiff had specifically stated that plaintiff is not pressing his claim of having acquired title by way of adverse possession as claimed in plaint in the light of law laid down by Hon'ble Apex Court in Gurdwara Sahib ::: Downloaded on - 11/09/2017 13:06:11 :::HCHP 52 vs. Gram Panchayat Village Sirthala, (2014)1 SCC 669, wherein it has been held that even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the .
effect that such adverse possession has matured into ownership, and as such this Court sees no reason to deliberate on the same. All the substantial questions of law are answered, accordingly.
59. Since this Court, after having carefully perused the evidence as well as law laid down on the point, has arrived at conclusion that there is total mis-appreciation, misconstruction of evidence, be it ocular or documentary, adduced on record by respective parties and findings returned by the Courts below are erroneous and perverse, it sees valid reason to interfere in the concurrent findings of fact recorded by both the Courts below. At the risk of repetition, it may be stated, at this stage, that Hon'ble Apex Court vide its various pronouncements, which have been taken note above, has held that concurrent findings of fact can be interfered in case of perversity.
60. In view of the detailed discussion made hereinabove, this appeal is allowed. The judgments and decrees passed by both the Courts below are set aside and suit filed by the plaintiff is decreed. A decree for specific performance of contract, as prayed for in the plaint, is granted in favour of the appellant-
plaintiff. Decree sheet be prepared, accordingly. There shall be ::: Downloaded on - 11/09/2017 13:06:11 :::HCHP 53 no order as to costs. Interim order, if any, stands vacated. All miscellaneous applications are disposed of.
CMPMO No.166 of 2017.
.
61. In view of the detailed discussion made in RSA No.555 of 2005, wherein finding of the Courts below that status of appellant-plaintiff over the suit property is in the capacity of tenant has been set aside, present petition is disposed of with the liberty to the petitioner-plaintiff to approach the Court below for passing appropriate order in the light of judgment rendered by this Court in aforesaid RSA No.555 of 2005.
September 5, 2017 (Sandeep Sharma)
(aks) Judge
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