Ajaib Singh @APPELLANT@Hash LRs of Shiv Lal

By way of the present appeal, the appellants â€" plaintiffs have called in question, the judgment and decree dated 30.03.1989 passed by learned Addl.

District & Sessions Judge, Raisinghnagar (hereinafter referred to as “the trial Courtâ€), whereby he had rejected the suit filed by them, on the

ground of limitation.

The facts within the precincts of the issue of limitation, adjudicated by the trial Court are; that the plaintiffs (appellants herein) filed a suit for specific

performane of the agreements dated 08.01.1963 and 08.04.1963, entered into between them on the one end and Shivlal and Harbansh Lal [propositus

of defendants No.(ii) to (viii)] on the other. It was stated by the plaintiffs that the defendants Shivlal and his brother Harbanshlal were in need of

money, for which they decided to sell their agricultural land admeasuring 24 bigha and 15 biswa of Murabba No.60, Chak No.21PS, Tehsil

Raisinghnagar, for a consideration of Rs. 15,000/-. The said land was allotted to the defendants by the State Government, however the same lying

uncultivated, for which they were tempted to sell it. The plaintiffs had paid a sum of Rs.1,000/- to the defendants at the time of execution of the

agreement to sell dated 08.01.1963. As per the agreement executed between the parties, out of the remaining amount of Rs.14,000/-, Rs.4,000/-

was agreed to be paid in cash in Chaitra Samvat 2030 while the remaining amount of Rs.9,000/- was to be deposited towards the due installments of

the land. The remainder of the consideration i.e. Rs.1000/- was agreed to be paid within a month of the payment of last instalment simultaneously at

the time of execution of the sale deed. Â

In furtherance of the said transaction, as a part performance, a sum of Rs.4,000/- was paid by the plaintiffs on 08.04.1963 and an endorsement to this

effect was made on the said agreement dated 08.01.1963 itself.Â

The plaintiffs stated that as a part performance of the agreement, the defendants had handed over the possession of the land, as a result whereof they

have been enjoying cultivatory possession over the land since the date of agreements. The plaintiffs averred that they had deposited a sum of

Rs.8143.92 against the due installments of the land belonging to Harbansh Lal (Rs.3950.80) and Shivlal (Rs.4193.12) on different dates and thus a sum

of Rs.857/- remained to be paid to the defendants.

According to the plaintiffs’ own averments, the sale deed was required to be executed within a month of payment of the due installments of the

land.

It had been the specific case of the plaintiffs that after making the payment of the due installments on 08.01.1968 with the Government, the plaintiffs

asked the defendants â€" vendors to execute the sale deed in their favour, but the defendants stated that as per the provisions of the Rajasthan

Colonization Act, 1954, the sale deed cannot be executed and registered, unless a consent (lun½ from the competent authority is obtained. The

plaintiffs have stated in their plaint that they were ready with a sum of Rs.857/- and willing to get the sale deed executed, after making the requisite

payment of the registration charges and stamp duty, but the defendants adopted dilatory tactics for avoiding the execution of sale-deed.

The plaintiffs came with a case that after death of Harbansh Lal, when they contacted Shivlal and Harbansh Lal’a progenies, they assured that

the needful would be done, when sons of Harbansh Lal would become major.Â

It has further been stated that when the plaintiffs contacted the defendants 15 days ahead of the filing of the suit, for the purpose of execution of the

sale deed, the defendants demanded a sum of rupees one lac and cautioned that otherwise they would sell it to someone else. The plaintiffs

contended that they contacted the defendants a day before instituting the suit and requested them to accept the remaining amount of Rs.857/- and

execute the sale deed in their favour, but they turned a flat face. Projecting the refusal (a day before the date of filing suit, which was filed on

07.10.1982) as a cause of action, the plaintiffs prayed relief of performance of the contract of sale in their favour.

It is interesting to note that in the plaint as originally filed, there were no averments touching upon the cause of action and limitation, however, when

the defendants raised the plea of limitation, the plaintiffs sought an amendment in the plaint by way of filing an application dated 16.02.1983 under

Order VI Rule 17 of the Code of Civil Procedure, which came to be allowed by the trial Court vide its order dated 17.05.1983 and an amended plaint

incorporating para No.21 ¼d½ came to be filed, which reads thus:-

^^21¼d½ %& ;g fd izfroknhx.k us oDr bdjkjukek cS;ukeka dh jftLVjh dk ok;nk okn&xzLr Hkwfe dh fdLrs Hkjus ds ,d ekg ds i’pkr fd;k Fkk

ijUrq Hkwfe jktLFkku dksyksukbZtsâ€ku ,DV 1954 ds vUrxZr cus fu;eksa ds vk/khu vykV dh xbZ Fkh blfy, bldh fcØh ds fy, thyk/kh’k egksn;

dh eatwjh ysuh vko';d Fkh blds oxSj cS;ukeka dh jftLVjh ugha gks ldrh Fkh vkSj fcØh voS/k gksrh blfy, foØrkx.k cS;ukeka eUtwjh feyus ij jftLVjh

djokus dk eqrkfcd /kkjk 8 okn&i= dgrs jgs] vkâ€oklu nsrs vkSj nksuksa i{k bl ij lger jgs ijUrq /khjs&2 Hkwfe ds Hkko cfu;r esa Qjd vkrk jgk vkSj mUgksaus fnukad 4-10-82 dks okn&xzLr lEifr dk foØ; foys[k&i= iathc) djokus ls Li""V badkj dj fn;k] vkSj blh rkjh[k dks

oknhx.k dks ekywe gqvk fd izfroknhx.k okn&xzLr lEifr dk cS;ukeka oknhx.k ds uke ugha djok;saxsA blfy, nkok vUnj fe;kn gSA**

With a view to ward off the hurdle of limitation, the plaintiffs stated that though the sale deed was required to be executed within a month of the

payment of due installment(s); however, sale deed could not be executed for want of requisite permission of the Collector needed under the provisions

of the Rajasthan Colonization Act, 1954. It has also been asserted that the vendors â€" defendants kept on assuring the plaintiffs that the sale deed

would be executed as and when the permission is obtained. According to the plaintiffs, on 5.10.1982, the defendants flatly refused to execute the sale

deed and immediately whereafter they filed the suit in question, to contend that the limitation would start running from 5.10.1982, the date when the

defendants denied the execution of the sale deed.

The defendants filed a written statement and stated that the subject land was allotted by the Central Government to the defendants being refugees and

not by the State Government; while taking a plea that the agreement had been got executed fraudulently. It was contended that even if the factum of

execution of the agreement dated 08.01.1963 is assumed; the sale deed was required to be executed within one month of the payment of the due

installments of the land, hence the suit filed after about 15 years was ex-facie barred by limitation. It was also stated that even going by the

plaintiffs’ own version a sum of Rs.857/- was due to the defendants, which amount had neither been offered by the plaintiffs, nor any request for

execution of the sale deed was ever made.Â

The defendants came out with a case that when the plaintiffs had deposited the entire due installments in the year 1968, they ought to have paid the

balance amount to the defendants and got the sale deed executed within a period of one month from 08.02.1968. According to them the limitation

commenced from 08.03.1968 and the suit filed in October, 1982 was hopelessly time barred. A specific stance of suit being barred by limitation was

taken by the defendants, while maintaining that the amount of remaining consideration was not offered to them to contend that the plaintiffs had failed

to perform their part within a month.

On the basis of the pleadings of the parties, the trial Court framed the following issues :-

^^1- vk;k fâ€koyky o gjoaâ€kyky us okn i= ds en laÅ' 1 o 3 esa of.kZr Hkwfe dks :Å' 15000@& :Å' esa oknhx.k dks cspus dk bdjkj fnÅ' 8-1-63 dks

oknhx.k ds gd esa fd;k o bdjkjukek rgjhj o rdehy fd;k \

2- vk;k oknhx.k us bdjkjukek fy[ks tkus ds le; 1000@& :Å' vnk fd;s o fnÅ' 8-4-63 dks 5000@& :Å' izfroknhx.k dks vnk fd;s ,oa lafonk dh vkafâ€kd

ikyuk esa dCtk tehu oknhx.k dks ns fn;k \ 3- vk;k oknhx.k us fookfnr tehu dh fdâ€rksa dh cdk;k jkfâ€k ds isVs gjcaâ€kyky ds [kkrs es 3950 :Å' 80

iSÅ' o fâ€​koyky ds [kkrs esa 4193 :Å' 12 iSÅ' dqy 8143 :Å' 92 iSÅ' vnk fd;s tks tehu dh dher es ,MtsLV gksus gS \

4- vk;k oknhx.k vuqca/k dh vius ftEes dh ’krksZa dks iwjk djus ds fy;s gesâ€​kk rS;kj ,oa rRij Fks o vc Hkh gS \

5- vk;k okn oknh okn i= iSjk uÅ'a 21¼d½ esa vfadr dkj.kksa ls vUnj fe;kn gS \

6- vk;k oknhx.k us vuqca/k dh â€​krksZa dh ikyuk esa le; ij fd’rs tek ugha djkbZ] us cdk;k jde vnk dh ;fn ,slk gS rks bldk nkos ij D;k vlj gS \

7- nknjlh D;k gksxh \**

Issue No.5 being legal issue, relating to limitation has been decided as a preliminary issue by the Court below. After appreciating the evidence in

this regard, the trial Court answered the issue in negative and resultantly the suit of the plaintiffs came to be rejected, being barred by limitation.

While discussing the pleadings and evidence of the rival parties, surrounding the issue No.5, the trial Court found that according to the terms of the

agreement dated 08.01.1963, the sale deed was required to be executed within one month of the payment of the last installments of the subject land;

and the same were paid in the year 1968, according to the plaintiffs’ own assertion. The trial Court has further observed that the plaintiffs have

not produced any documentary or oral evidence to prove that after payment of the due installments, they had asked the defendants to execute the sale

deed in their favour. Further, the failure on the part of the plaintiffs to issue any letter or notice has been reckoned by the Court below, as their

negligence or attempt to let the period of limitation expire, by their own indolent and negligent attitude. The trial Court went ahead to observe that

contents of para No.21 ¼d½ of the plaint were nothing, but a story scripted by the plaintiffs in a bid to bring their suit within limitation. As the

assertions made in the para No.21 ¼d½ were not proved, the trial Court held that the time was an essence of the contract; and that the limitation

started running from the year 1968; and hence, the suit ought to have been filed before expiry of three years therefrom; i.e. in the year 1971.Â

As a natural corollary of the decision of issue No.5 in unaffirmative form, the suit filed by the plaintiffs came to be rejected vide the judgment and

decree dated 30.03.1989.

After narrating the facts with his usual precision, Mr. J.L. Purohit, learned Senior Counsel assisted by Mr. Rajeev Purohit, assailed the findings and

conclusion arrived at by the trial Court on numerous counts. While reading the contentious agreement dated 08.01.1963; its endorsement dated

08.04.1964; and the statements of PW-1 â€" Ajayab Singh vis-a-vis the statement of DW1 â€" Satishchand S/o Harbansh Lal, Mr. Purohit impeached

the finding of the Court below from all conceivable counts.Â

Reading the statement of PW-1 and the averments made in the plaint, particularly para No.21 ¼d½ thereof, learned counsel for the appellants

contended that after payment of due installments, the plaintiffs contacted the defendants for execution of the sale deed, but they deferred the

performance by saying that the sale deed would be executed after the defendants No.4 to 8 became major, as Harbansh Lal had passed away, leaving

behind his six children and wife; out of whom only one son was major. He added that plaintiffs bonafidely believed such version, as they were

aware that the sale deed could not be executed without the permission of the competent Court, as the defendants No.4 to 8 were minor at that time.Â

Mr. Purohit invited attention of this Court towards the Rajasthan General Colony Condition No.9 of the Rajasthan Colonization Act, which contains an

embargo that an allottee cannot sell the land, without prior permission of the competent authority viz. Collector.

He contended that as the defendants did not obtain the requisite consent ¼lun½, from the competent authority and protracted the execution of sale

deed in the guise of age of the defendants No.4 to 8, the time period provided in the agreement dated 08.01.1963 stood extend automatically. The

limitation would start running from the date of refusal by the defendants, which in the present case was 05.10.1982 and the suit filed by the plaintiffs

on 07.10.1982 was clearly within limitation; argued learned senior counsel.

Mr. Purohit vehemently argued that the period of one month for execution of sale deed given in the agreement dated 08.01.1963 was not essence of

the contract and the intention of the parties was to perform the contract when the permission to sale (lun) is obtained from the competent authority.Â

Elucidating his arguments, Mr. Purohit contended that it was the duty and responsibility of the defendants to get the due permission from the

competent officer; the plaintiffs believed rather relied upon the assurance of the defendants that they would execute the sale deed once the permission

is obtained and the defendants attain the age of majority. Mr. Purohit contended that the plaintiffs, who had been bonafidely believing the version of

the defendants, had been betrayed. They can neither be put to a disadvantageous position for the failure of the defendants to get the permission; nor

can the defendants be allowed to avoid the execution of sale deed under such ploy. Learned senior counsel thus argued that in the present factual

matrix, the limitation to institute the suit would commence from 5.10.1982 and not from 1968.Â

In support of his arguments Mr. Purohit cited the following judgments :-

(1) Balwant Singh Vs. Rajaram, reported in 1974 RLW 482;

(2) M. Meenakshi & Ors. Vs. Metadin Agarwal (dead) by LRs &Ors., reported in (2006) 7 SCC 470;

(3) Lakshminarayana Reddiar Vs. Singaravelu Naicker & Anr.,reported in AIR 1963 Madras 24; and

(4) Balasaheb Dayandeo Naik (dead) through LRs.) & Ors. Vs.Appasaheb Dattatraya Pawar, reported in (2008) 4 SCC 464.

Mr. Shrawan Ojha, learned counsel for the respondents defending the dismissal of the suit by the Court below urged that the terms of the agreement

were clear, categorical and sacrosanct. Such terms are required to be strictly adhered to, according to which within one month of the payment of due

installment(s), the balance consideration was supposed to be paid; and the sale deed to be executed.Â

He contended that as the plaintiffs had failed to offer the balance amount and call upon the defendants to execute the sale deed, within the stipulated

period of one month from the payment of the installment(s), the plaintiffs cannot maintain the suit for specific performance after 3 years of the cause

of action, which apparently arose to them in February, 1968. Mr. Ojha pointed out that there is no documentary evidence such as notice or mutual

consent to extend the time for performing the contract etc. and even the statement of PW-1 Ajayab Singh does not indicate much less establish

anything, worth bringing the suit within the limitation.Â

He emphasised that as stated in para No.8 of the written statement, there was no requirement of getting the consent of the competent officer, and

even if the same was required, the sale deed could be got executed and the transaction, ratified. He submitted that the last installment was paid on

08.01.1968, whereas Harbansh Lal had died in 1966, which unravels the falsehood of the stand of the plaintiffs. He contended that plaintiffs have

miserably failed to prove the story, which they had projected; while maintaining that even if such stance of the plaintiffs is accepted, the same cannot

enlarge the period of limitation, dehors the express terms of the agreement.

I have heard learned counsel for the rival parties and perused the material available on record, including the testimony of plaintiffs’ witnesses PW-

1 Ajayab Singh; PW-2 Uttam Singh; PW-3 Kartar Singh; PW-4 Shyam Lal; and PW-5 Khema Ram. Out of the five witnesses aforesaid, brought

by the plaintiffs, statements of PW-1 Ajayab Singh alone are relevant for the present purposes, inasmuch as PW-2 Uttam Singh and PW-3 Kartar

Singh were the attesting witnesses and PW-4 was the scriptor or deed writer of the agreement, while PW-4 Khema Ram was only brought as a

witness to show the possession of the plaintiffs.

A look at the statement of PW-1 Ajayab Singh â€" plaintiff No.1, reveals that as per his version, after the payment of the installments, he had

requested Shiv Lal to execute the sale deed, who in turn stated that sons of Harbansh Lal except the eldest son were minor and as and when they

would become major, the sale deed would be executed in their favour. PW-1 states that before 15 days of filing of the suit, when they contacted the

defendants, they demanded a sum of rupees one lac, failing which they would execute the sale deed in favour of someone else. Ajayab Singh had

also deposed that the sale deed could not be executed for want of permission (lun) from the Collector.

During the course of cross-examination, PW-1 had admitted that all the installments had been paid in the year 1968 and within a month of payment of

the installments, he had asked Shivlal to execute the sale deed, but he took an excuse of getting permission from the competent officer and did not

execute the sale deed. In the same breath, he further stated that he had been pursuing Shivlal and Satish to get the permission (lun) from the

competent officer and he had even got defendants’ signatures on the requisite papers, but the permission (lun) could not be obtained, as they

refused to give money to the Patwari.Â

The tenor of the testimony of Shivlal, leaves no room for ambiguity that the permission of the competent officer was understood or implied to be

obtained by the plaintiffs. It will not be out of context to reproduce the relevant part hereinabelow :-

^^fdâ€rs lu~ 1968 esa geus Hkj nh Fkh tks lu~ 1968 esa csckd gks xbZ Fkh fdâ€rs geus gh Hkjuh Fkh muds pkyku o jlhnsa xqe gks xbZA lun ykus ds

fy;s geus fâ€koyky dks o lrhâ€k dks dgk buds lun izkIr djus ds fy;s nj[okLrksa ij gLrk{kj Hkh djok;s ysfdu bUgksaus iVokfj;ksa dks iSls ugha fn;s

blfy;s bUgsa lun ugha nhA**

The excerpt reproduced above clearly reveals that the plaintiffs were conscious of this fact that the sale deed could not be executed for want of

permission, for which they had got the relevant papers signed from the defendants, yet could not and did not obtain the consent. If the plaintiffs failed

to obtain the consent from the Collector or they were aware that the defendants were not cooperating for execution of the sale deed or even avoiding

the execution, they were required to come into action, or bring the suit immediately or at least within three years of payment of due installments i.e. by

1971. Neither in the plaint nor in the statements of PW-1, it has been stated that when did they offer the remaining amount of Rs.857/- to the

defendants and requested them to execute the sale deed.

A bare look at the terms of the agreement shows that the plaintiffs were required to offer the remaining amount of Rs.1,000/- (or Rs.857/-), within

one month of the last payment of installment, which admittedly had been made in January, 1968. That being the position, it was incumbent upon the

plaintiffs to have offerred the amount of Rs.857/-, within one month from 08.01.1968 and also to call upon the defendants to execute the sale deed; by

way of sending letter or notice. The plaintiffs having failed to do so, were required to bring the suit within three years of such point of time i.e. by

February, 1971, if they wanted their rights to be enforced by the Courts of Law. Article 54 of the Limitation Act clearly stipulates that a suit for

specific performance has to be filed within a period of three years of the date fixed for performance of the agreement and if no such date is

mentioned in the agreement, then within three years of the refusal.

Upon appraisal of the facts obtaining in the instant case, I am prima facie of this view that the suit filed by the plaintiffs was time barred; as the time

for performance of the contract was fixed, viz “within one month of the payment of the installments:â€, which admittedly had taken place on

08.01.1968.

Now I proceed to deal with the judgments cited by Mr. Purohit in support of his case; to examine, as to whether the judgments cited by him hold the

view otherwise or can they persuade me to change my first flush view, in the backdrop of the facts proved.

(1) Balwant Singh Vs. Rajaram, reported in 1974 RLW 482.

While citing the above judgment, Mr. Purohit canvassed that the agreement like the one, at hand, is not a contingent contract. He referred to para 10

of the judgment, which is being reproduced hereunder :-

“10. The undertaking of the defendant that he shall obtain the sanad after depositing the amount due to the government is enforceable under the

terms of the agreement even if the defendant had committed default in depositing the outstanding dues and in obtaining the sanad. Sec. 13 (b) of the

Specific Relief Act, 1963 can usefully be referred to in this connection, which says that where the concurrence of other persons is necessary for

validating the title, and they are bound to concur at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such

concurrence. I think the Court has power and jurisdiction under sec. 13 (b) of the Specific Relief Act, 1963, to compel the defendant to take steps

and obtain the sanad in respect of the land agreed to be sold by him. The learned Additional District Judge, in the circumstances, rightly passed a

decree in the manner in which he did.â€​

A perusal of the facts of the case aforesaid reveals that the core issue before the Court was as to whether the defendant having undertaken to obtain

the Sanad within four months from the date of agreement, could be asked to obtain a Sanad. This Court while rejecting the appeal against a decree

of specific performance granted by the trial Court held that such a decree could be granted.Â

However, in the present case, the facts are entirely different; neither there was any express condition requiring obtaining of the ‘Sanad’ by the

defendants nor is the question of passing of such decree is involved in the present case.Â

In the case at hands, involving the issue of limitation, this case hardly lends any help to the appellants.Â

(2) M. Meenakshi & Ors. Vs. Metadin Agarwal (dead) by LRs & Ors., reported in (2006) 7 SCC 470.

Having gone through the judgments in juxtaposition with the facts and law involved in the present case, this Court is at a loss to comprehend, as to

how this judgment is applicable in the facts extant, much less being profitable to the plaintiffs by whatever stretch.

(3) Lakshminarayana Reddiar Vs. Singaravelu Naicker & Anr., reported in AIR 1963 Madras 24.

Reading Para 11 of the judgment and Head Note (9), Mr. Purohit contended that a cause of action arises to a party when the obligator is in a position

to perform his promise and till such date, no cause of action arises. Equating the facts of the judgment aforesaid, Mr. Purohit contended that cause

of action to institute a suit accrued to the plaintiffs only on 5.10.1982, when the defendants refused to execute the sale deed, till then the cause of

action did not accrue, as the requisite permission was not available with the defendants.

The position of law as enunciated vide the aforesaid judgment cannot be disputed. A close book thereat reveals that the Madras High Court in the

said judgment found that the period of time began to run only from 08.01.1953, till the sale of the property in question being mortgaged property was

set aside by the District Judge on 08.01.1953. A careful reading of the facts narrated in para No.3 of the judgment aforesaid reveals that the parties

to the agreement had mutually agreed to extend the time for execution of the sale deed, pending disposal of the appeal in the High Court. In other

words, the parties with consent and by their conduct had extended the period of execution of the contract.

As against the facts of the case before Madras High Court, there is neither any express extension or implied acceptance by the contracting parties to

extend the time for performing the contract. The plaintiffs have failed to establish that there was an express or implied obligation upon the

defendants to obtain permission from the competent authority or the Court. Merely because the permission of the Collector was not obtained and

also because the defendants No.4 to 8 were minor, the period cannot be said to have been extended, particularly in absence of any such stipulation in

the agreement.Â

(4) Balasaheb Dayandeo Naik (dead) through LRs.) & Ors. Vs. Appasaheb Dattatraya Pawar, reported in (2008) 4 SCC 464.

The aforesaid judgment cited by Mr. Purohit is also not relevant in the present facts, which are starkly different from the facts of the case before

Hon’ble the Supreme Court. In the case before the Apex Court, the trial Court had decreed the suit filed by the plaintiff, inter alia holding that

the time was an essence of the contract, keeping in view the agreement dated 31.7.1985, which required the defendants to execute the sale deed

within a period of six months;Â the plaintiff had offered and was ready with the balance amount, but the defendants avoided to receive the balance

amount of consideration. But this is not the fact situation in the case at hands. This Court is unable to fathom its bearing or relevance in the

factual backdrop of the present case, wherein the suit had been dismissed on the ground of limitation.

The judgments cited by Mr. Purohit neither guide on the questions involved, nor do they glide this Court away from the view, it has firstly formed;

based on the factual matrix of the case, coupled with the fundamental statutory provisions and principles.

The agreement dated 08.01.1963 is categoric and crisp, and the same contains a clear clause that the sale deed will be executed within one month of

the last payment of the installment(s).Â

According to this Court, the terms of the agreement between the parties are final and binding. Courts cannot add, subtract or imply something more

than the express written terms, unless the parties involved, by way of cogent evidence prove that such terms were amended/modified by mutual

consent or conduct. No evidence to this effect has been brought by the plaintiffs. Not only that the contents of para No.21 were after-thought, but the

plaintiffs have also failed to establish such assertion.Â

After delving into the facts, pleadings and evidence of the instant case, I am of the firm view that it was incumbent upon the plaintiffs to have offered

the remaining amount of Rs.857/-, within one month from 08.01.1968 and either get the permission or persuade the defendants to get the same; if they

believed that it was sine qua non for the execution of the sale deed. The plaintiffs having failed to do so and having neglected/omitted to take any

action within three years of the last payment of installments, are themselves to be thanked or blamed. They are the persons responsible for letting

the limitation lapse.Â

The suit in question was per se barred by limitation and has been rightly held so, by the Court below, vide its judgment and decree under

challenge. Â

There is no force in the appeal, for which it is rejected.

Parties are left to bear their own costs.