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RFA 768/1995 is filed by the appellant/plaintiff being aggrieved by the dismissal of the suit seeking for specific performance against the defendent in respect of the adjacent marginal land to the suit property.

2. The plaintiff's case in brief is that the plaintiff and defendant are co-brothers. On 17.12.1975, both the parties entered into an agreement in respect of the property as noted above, wherein the defendant had agreed to sell the said site along with the marginal land adjacent to it, at the rate of Rs. 13 5/- and Rs. 95/- respectively per square and as per the agreement, defedant had to obtain the necessary certificates by paying layout charges, taxes and other amount to the CITB (now BDA). It was for the defendant to secure necessary possession certificate for the adjacent marginal land before executing the sale deed. At the time of agreement for sale, the plaintiff is said to have paid an amount of Rs. 16,000/- as part of the consideration. Subsequent thereof on 1.6.1976 about Rs. 18,000/- was paid and another Rs. 5,000/- was paid on 6.7.1982 in the presence of some of the witnesses like Govindaraju and other persons. For the subseqent payments there are no receipts. The defendant had undertaken to clear all formalities and to execute the sale deed and also documents in respect of marginal land from the then CITB as stated by him. It is averred that plaintiff was given possession of the suit schedule property on the date of agreement as part performance of the contract. Plaintiff in turn, had leased out the said suit schedule site to one Mohammed Salahia s/o Mohammed Ghouse on 30.5.1977 on execution of rental karar which was said to be attested by the defendant. The plaintiff was collecting the rent from the said tenant. Out of the total amount of consideration, about Rs. 39,000/- was said to have been paid and according to the plaintiff, he was all along ready and willing to perform his part of the contract and was ready to pay the balance consideration and get the sale deed executed in his favour. Further, it is averred that a meeting/panchayat was held demanding the defendant to execute the sale deed prior to the issuance of legal notice on 8.6.1985. Although the plaintiff by issuing a legal notice called upon the defendant to execute the sale deed, neither he replied nor executed the sale deed. Hence, the suit. It is also averred that the cause of action arose on 17.12.1975 and subsequently as and when payments were made and after issuance of legal notice demanding specific performance.

3. Further, during pendency of the suit, the plaintiff also got the plaint amended and averred that defendant was bound in law to obtain necessary possession certificate in respect of the marginal land after paying the necessary charges. Accordingly, he has sought for a direction to the defendant to obtain possession certificate in respect of the marginal land and also to execute the sale deed as undertaken in the agreement.

4. The defendant contested the suit by filing written statement. Although he has admitted the agreement dated 17.12.1975 but, he declined to admit the subsequent payments made. Further, he has also stated that the persons upon whom the plaintiff is relying upon to hold that subsequent payments were made in the presence of persons, are all relatives to the plaintiff and enimical towards him, neither the defendant had delivered possession of the property nor was it let out by the plaintiff to one Mohammed Salahia. Rather, the defendant himself had let out the property to Mohammed Salahia and was collecting the rent and also stated that the time is the essence of contract. The plaintiff has violated the terms of the contract and his suit is barred by limitation as it is filed after nine years of the agreement of sale and the defendant was highly indebted and in order to discharge the debts, he had entered into an agreement of sale with the plaintiff but, the plaintiff who was aware of the fact took undue advantage of the same and got obtained an agreement of sale and despite the defendant ready and willing to perform his part of the contract, the plaintiff did not come forward within the stipulated time to pay the amount and to get the sale deed executed and there is no cause of action. As such, he sought for dismissal of the suit. Further, it is also stated in the amended plaint that he was not bound to obtain necessary possession certificate from the CITB in respect of the marginal land, described in the schedule and also the plaintiff is not entitled for conveyance of the marginal land nor for any such relief of directing this defendant to obtain the necessary possession certificate from the CITB (BDA) and to convey the marginal land in fevour of the plaintiff, as the plaintiff has not discharged his obligations. Further, there is no provision in the BDA Act to enable the BDA to re-convey the sites in favour of the defendant.

7. On behalf of the plaintiff, it is submitted that the Trial Court is perfectly justi lied in passing the decree in favour of the plaintiff as time was not the essence of contract. Although there is delay in filing the suit, such lapse was due to the fault on the part of the defendant since he did not secure necessary certificate from the CITB (BDA) and also he did not come forward by accomplishing the duty on his part viz., the payment of tax and other charges and also obtaining the certificate to enable him to execute the sale deed and also as undertaken by him, he did not obtain any permission or certificate from the then CITB so far as marginal land to the suit property so as to execute the sale deed in favour of the plaintiff as per the agreement within one month and that as per the condition in the agreement Ex. P1, it was for the defendant to make necessary arrangements and thereafter, for the plaintiff to approach for the execution of the sale deed. Since the defendant did not intimate as to his readiness to execute the sale deed although all along the plaintiff was ready and willing to perform his part of the contract by paying substantial amount, the defendant went on postponing on one or the other pretext. Accordingly, he submitted that the time was not the essence of the contract and Article 54(2) of the Limitation Act applies. The plaintiff has made payment from time to time and also has taken possession of the property from the defendant in part performance of the agreement and that subsequently, the suit property was let out to one Mohammad Salahia for which the defendant is also a signatory. Although the plaintiff has issued legal notice to the defendant neither it has been replied nor the sale deed was executed and few days prior to the issuance of legal notice, there was a panchayat held and in that panchayat, defendant some how did not express his willingness to perform his part of the obligation. Accordingly, he submitted that the Trial Court has rightly decreed the suit. Further, in support of his argument, he also relied upon the decision in SMT CHANDRANI (DEAD) BY LR'S v. SMT KAMAL RANI (DEAD), and also another decision of this Court in H.M. KRISHNA REDDY v. H.C. NARAYANA REDDY, 2001 (5) KLJ 204 to contend that a suit for enforcement of a contract of sale has to be fild within three years from the date of notice demanding execution of sale deed and if the same was not favourably responded by the other party, in such circumstances, the suit is held to be not haired by limitation.

8. Whether the Trial Court is justified in holding that the suit is not barred by limitation?

9. Whether the judgment and decree passed by the Trial Court suffers from any error or illegality which calls for interference?

9. As per the stipulations in the agreement to sell entered into between the parties, the defendant who is the owner of the suit schedule property brearing CITB No. 18 A which is said to be, measuring about. 85 ft East West and 24+25/2. North South to be sold at the rate of 135 per sq. yard. It is also stated that there is a marginal land measuring 30 ft East West and 40 ft North-South adjacent to the suit land. The same has been agreed to be conveyed at the rate of Rs. 95 per sq.yard. It is stated on the date of agreement an amount of Rs. 16,000/- was paid in the presence of the witnesses. Out of the two lands noted above, the defendant had agreed to pay all layout charges, taxes in respect of the marginal land and also to obtain possession certificate and also in connection with both the items, he will get the sale deed from the CITB and agreed to execute the sale deed in favour of the plaintiff. Regarding the expenses incurred towards sale deed by the CITB, both the parties agreed to bear the expenses.