Banshi Lal vs Smt. Kamla Devi

H.R. Panwar, J.—This civil second appeal u/s 100 of CPC (for short ''the Code'' hereinafter) is directed against the judgment and decree dated 29.7.2009 passed by learned Additional District Judge (Fast Track), Anupgarh, Headquarter Suratgarh (for short ''the first appellate Court'' hereinafter) whereby the appeal filed by the respondent plaintiff against the judgment and decree dated 9.9.2004 passed by . Civil Judge (Sr, Div.), Suratgarh, District Sriganganagar (for short ''the trial Court'' hereinafter) in Civil Original Case No. 44/2000 was allowed.

Briefly stated the facts of the case to the extent they are relevant and necessary for the decision of the this second appeal are that the respondent plaintiff filed a civil suit before the trial Court for specific performance of agreement dated 14.5.1988 by which the appellant defendant agreed to sale agriculture land in favour of the respondent plaintiff. Before the trial Court, the appellant defendant filed his written statement and came with a plea that the document was not for agreement to sale but it was a document mortgaging the land. However, the appellant defendant admitted having received the part payment of consideration mentioned in the document agreement to sale Ex.l. The total amount of sale consideration was Rs. 31,500/-, out of which, a sum of Rs. 16,500/- was paid by the respondent plaintiff to the appellant defendant at the time of execution of the document agreement to sale as also the possession of the land, agreed to. be sold, was handed over to the respondent plaintiff. This fact has not been disputed by the appellant defendant that the possession of the land under agreement to sale was handed over to the respondent plaintiff at the time of receiving Rs. 16,500/- from respondent plaintiff and since 14.5.1988 the respondent plaintiff is in possession of the entire land covered by agreement to sale Ex.l. The trial Court framed issues and tried the suit. The plea of limitation was also taken in the written statement and therefore, issue as to whether the suit filed by the respondent ,plaintiff is barred by period of limitation was also framed as Issue No. 7. The Issue No. 7 came to be decided against the appellant defendant. The trial Court instead of decreeing the suit for specific performance of the agreement Ex.1 dated 14.5.1988 decreed the suit for the payment of Rs. 16,500/- in favour of the respondent plaintiff and against the appellant defendant. The respondent plaintiff filed an appeal before the first appellate Court being Appeal No. 4/08 (4/04). By the judgment and decree impugned dated 29.7.2009, the first appellate Court allowed the appeal filed by the respondent plaintiff for specific performance of the agreement dated 14.5.1988 Ex.l and directed the appellant defendant for specific performance of contract i.e. agreement to sale dated 14.5.1988 and to get the document deed of sale executed and registered in favour of respondent plaintiff within two months from the date of judgment and decree in respect of the land Chak 13 S.D. Tehsil Suratgarh Murabba No. 118/396, Kila No. 4 to 6 and 13 to 16 measuring 7 bighas and at the time of getting the document deed of sale registered, the balance amount of consideration shall be paid by the respondent plaintiff to the appellant defendant and the expenses for registration of the deed of sale shall be borne by the respondent plaintiff. If the appellant defendant fails to comply with the directions of the Court, then it will be open for the respondent plaintiff to get the document for deed of sale registered through Court. Hence this appeal.

I have heard learned Counsel for the appellant as also counsel appearing on caveat for the respondent. Carefully one through the judgment and decree of the trial court as also of the first appellate Court. "

Mr. S.L. Jain, learned Counsel appearing for the appellant defendant submits that the suit for specific performance of the agreement was barred by period of limitation. According to him, Article 54 of the Limitation Act prescribes the limitation of three years for specific performance of the contract and according to the statement of respondent plaintiff she has been approaching the appellant defendant for getting the deed of sale registered in respect of the land subject matter of the agreement to sale for long period and therefore, according to learned Counsel for the appellant defendant, the suit is barred by period of limitation. It is further contended by learned Counsel for the appellant defendant that at the time of entering into agreement to sale in respect of the land under agreement, indisputably it was a Gair Khatedari land and appellant defendant did not have an absolute title to transfer the land and therefore, the document agreement to sale Ex.l is void ab-initio and as such its performance cannot be ordered. Learned Counsel for the appellant defendant submits that Section 3 of the Limitation Act casts a duty upon the Court to dismiss the suit if filed beyond the period of limitation, even if the limitation has not been. set up as a defence. According to learned Counsel for the appellant defendant, in the written statement filed by the appellant .defendant, on the point of limitation it was specifically pleaded that the suit is barred by period of limitation. On the point of limitation, learned Counsel for the appellant defendant has relied on a decision of Hon''ble Supreme Court in Ahmadsahab Abdul Mulla (D) by proposed LRs. v. Bibijan and Ors. 2008 AIR SCW 3368. Learned Counsel for the appellant defendant further submits that Section 13 of the Rajasthan Colonisation Act, 1954 (for short ''the Act of 1954'' hereinafter) deals with transfer of rights which provides that no tenant shall, without the previous consent in writing of the State Government or an Officer of the State Government authorised by it in this behalf, see original (Forest line) mortgage, exchange or gift or shall create thereon or shall sub-let the same for more than five years except by way of exchange u/s 12 or by way of mortgage or charge to the State Government or to a bank for the purpose of obtaining financial assistance from any of them. According to learned Counsel for the appellant defendant, on the relevant date of execution of agreement to sale Ex. 1 dated 14.5.1988, no permission or consent was obtained by the appellant defendant from the State Govt. for transfer of his rights in the agriculture land which is subject matter of the agreement to sale and therefore, in absence of prior consent of the State Govt., the document agreement to sale in respect of Gair Khatedari land is void and therefore, its specific performance cannot be ordered. Learned Counsel for the appellant defendant further submits that Section 16(c) of the Specific Relief Act creates a personal bars to relief which provides that specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove. that he has performed or has always been and is ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. The Explantation to Section 16(c) of the Act provides that where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court and the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. Lastly, it was contended by learned Counsel for the appellant defendant that the first appellate Court arrived at finding by considering irrelevant fact and therefore, a finding arrived at by considering irrelevant fact gives rise to a substantial question of law and learned Counsel for the appellant has relied on a decision of Hon''ble Supreme Court in Abdu1 Raheem v. Karnataka Electricity Board and Ors. 2008 AIR SCW 463.

Mr. Muktesh Maheshwari, learned Counsel appearing on caveat for the respondent contended that so far as issue No. 7 as to whether suit fiied by the respondent plaintiff was barred by period of limitation is concerned, there is concurrent finding of both the courts below and therefore, it has rightly been decided in favour of the respondent plaintiff and against the appellant defendant. According to learned Counsel for the respondent, before the first appellate Court, the appellant defendant did not press the finding on issue No. 7. Learned Counsel for the respondent has relied on decisions of Hon''ble Supreme Court in Sri Babu Ram Alias Durga Prasad Vs. Sri Indra Pal Singh (Dead) by Lrs., in Panchanan Dhara and Others Vs. Monmatha Nath Maity (Dead) thr. L.Rs. and Another, and a decision of this Court in Ram Karan and Ors. v. Govind Lal and Anr. 1999 (1) Raj. 152 as also a decision of Punjab and Haryana High Court in Bhagwan Singh v. Teja Singh alias Teja Ram AIR 1995 Punjab and Haryana 64.

The burden to prove issue No. 7 was on the appellant defendant and during course of arguments before the first appellate Court, the appellant defendant did not press the finding of the trial Court recorded on issue No:7 though it was contended that the document agreement to sale Ex.l is dated 14.5.1988 and suit has been filed after a period of 12 years, but no such plea was taken by the appellant defendant before the trial Court Even otherwise, Article 54 of the Limitation Act provides period of limitation of 3 years for specific performance of a contract and the limitation to commence from the date fixed for performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. In the instant case, the respondent plaintiff sent a notice Ex.2 dated 3.6.2000 through counsel requiring the appellant defendant to execute a sale deed in pursuance of the agreement to sale Ex.l and the appellant defendant refused to accept the notice and that is the date the appellant defendant refused to perform the agreement to sale giving cause of action to the respondent plaintiff for getting the deed of sale executed and registered. The suit has been filed within three years from the date of refusal of notice Ex.2 i.e. in the year 2000 itself and therefore, in my view, the appellant defendant was right in not pressing the issue of limitation during course of arguments before first appellate Court and therefore, now the appellant defendant is estopped from agitating the same issue which he did not press before the first appellate Court. Even otherwise, on facts, in my view, the trial Court was justified holding that the suit is within the period of limitation.

Learned Counsel for the respondent further contended that so far as the land, subject matter of agreement to sale Ex.1 dated 14.5.1988 on the date of entering into agreement by appellant defendant in favour of respondent plaintiff, being Gair Khatedari is concerned, it is not in dispute that subsequent thereto, the appellant defendant acquired the Khatedari right and had an absolute right to transfer the land. Section 13 of the Specific Relief Act deals with rights of purchaser or lesssee against person with no title or imperfect title at the time of entering into contract. Section 13 of the Specific Relief Act reads as under:

Right of purchaser or lessee against person with no title or imperfect title-(1) Where a person contracts to sell or let certain immovable property having no title or only an imperfect title, the purchaser or lessee (subject to the other provisions of this Chapter), has the following rights, namely:

(a) if the vendor or lessor has subsequently to the contract acquired any interest in the property, the purchaser or lessee may compel him to make good the contract out of such interest;

(b) 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, and when a conveyance by other persons is necessary to validate the title and they are bound to convey at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such conveyance;

(c) where the vendor professes to sell unencumbered property, but the property is mortgaged for an amount not exceeding the purchase money and the vendor has in fact only a right to redeem it, the purchaser may compel him to redeem the mortgage and to obtain a valid discharge, and, where necessary, also a conveyance from the mortgagee; �

(d) where the vendor or lessor sues for specific performance of the contract and the suit is dismissed on the ground of his want of title or imperfect title, the defendant has a right to return of his deposit, if any, with interest thereon, to his costs of the suit, and to a lien for such deposit, interest and costs on the interest, if any, of the vendor or lessor in the property which is the subject-matter of the contract.

(2) The provisions of Sub-section (1) shall also apply, as far as may be, to contracts for the sale or hire of movable property.

Thus, from, the plain reading of Section 13 of the Specific Relief Act, it is clear that where a person contracts to sell or let certain immovable property having no title or only an imperfect title, the purchaser or lessee (subject to the other provisions of this Chapter), has the right if the vendor or lessor has subsequently to the contract acquired any interest in the property, the purchaser or lessee may compel him to make good the contract out of such interest.

Learned Counsel for the respondent further contended that Section 43 of the Transfer of Property Act, 1882 or short ''the TP Act'' hereinafter) provides that where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which contract of transfer subsists. It further provides that nothing in this section shall impair the right of transferees in good-faith for consideration without notice of the existence of the said option.

In The Jumma Masjid, Mercara Vs. Kodimaniandra Deviah, Hon''ble Supreme Court while considering the provisions of Section 43 of the TP Act held that when these conditions are satisfied, the section enacts that if the transferor subsequently acquires the property, the transferee becomes entitled to it, if the transfer has not in meantime been thrown up or cancelled and is subsisting.

Learned Counsel for the respondent further contended that there is no requirement under law for registration of agreement to sale Ex. 1 dated 14.5.1988. Though in part performance of the said agreement, indisputably, the possession of the land sought to be sold to the respondent plaintiff vide Ex.l was handed over to respondent plaintiff but at the relevant date of agreement i.e. 14.5.1988, the document agreement to sale Ex.1 transferring the possession of immovable property was not compulsorily registrable document though subsequently in the year 1989 such document has been made compulsorily registrable document but at any rate, on the relevant date of execution of the document agreement to sale dated 14.5.1988, there was no such, requirement under law.

Learned Counsel for the respondent further contended that the respondent plaintiff was ready and willing to perform the term of contract. This. fact has been specifically averred in the plaint and proved by evidence. In the instant case, the respondent plaintiff has paid half of the total amount of sale consideration at the time of entering into agreement to sale Ex.l which is not in dispute and what the respondent plaintiff was to do is that the appellant defendant on having obtained the consent of the State Govt. for transfer of the land, the respondent-plaintiff was to bear the expenses of the registration of deed of sale including the expenses of the stamps required for registration of the sale deed and to pay the balance amount of sale consideration and for the respondent plaintiff has always been and was ready and willing to perform.

Learned'' counsel for the respondent has relied on decisions of Hon''ble Supreme Court in Syed Dastagir Vs. T.R. Gopalakrishnasetty, in Harjeet Singh and Anr. v. Amrik Singh and Anr. (2005) 12 SCC 270 as also two decisions of this Court in Balwantsingh Vs. Rajaram, and in Smt. Shanti Bai v. Udai Raj 2005 (4) RDD 770 (Raj.) 14 . I have given my thoughtful consideration to the rival submissions made by counsel for the parties.

So far as issue No. 7 as to whether the suit filed by the respondent plaintiff is barred by period of limitation is concerned, it has been discussed herein above in detail and I came to the conclusion that there was no time period mentioned for performance of the contract i.e. agreement to sale Ex.1 and therefore, the period of limitation was to commence from the date of refusal by the appellant defendant to perform his part of the contract and that date indisputably is the date when the notice through counsel was sent by the respondent plaintiff to the appellant defendant to perform the contract by getting sale deed executed and registered in favour of the respondent pfaintiff which the appellant defendant refused to accept and indisputably the suit was filed in the year 2000 itself promptly from the date of refusal and therefore, it cannot be said that the suit is barred by period of limitation.

16 In Babu Ram alias Durga Prasad (supra) while considering the provisions of Article 54 of the Limitation Act, of the Supreme Court observed as under:

Under Article 54 of the Limitation Act, 1963, it is stated in the third column that the suit for specific performance had to be filed within 3 years from the late stipulated in the contract or from the date of refusal to perform the contract. In the present case, even though a period of five years is fixed for exercising the option to repurchase, it is not specified in the agreement that the vendee shall execute the deed of repurchase within a a particular period from the date of exercise of option. Hence the first part of the third column of Article 54 does not apply. The second part applies. Time therefore, starts to run only from the 22.7.1968, the date when the defendant refused to execute the deed of reconveyance. The suit was filed on 6.10.1969 within three years from 22.7.1968. Suit is in time as held by the trial Court. Point 5 is held in favour of the plaintiff.

In Pancharan Dhara and Ors. v. Monmatha Nath Maity (D) by L. Rs. and Anr. (supra) while considering the provisions of Article 54 of the Limitation Act and Section 20 of the Specific Relief Act, the Hon''ble Supreme Court held that time to file suit shall be deemed to start running only when plaintiff had notice that performance had been refused.

So far as fulfilling requirement of Section 16(c) of the Specific Relief Act that whether the respondent plaintiff has averred and proved that she has always been and is ready and willing to perform the contract, Hon''ble Supreme Court in Syed Dastagir v. T.R. Gopalakrishna Setty (supra) held that no specific phraseology or language is required to take such a plea. The language in Section 16(c) does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of "readiness and willingness" has to be in spirit and substance and not in letter and form. So to insist for mechanical production of the exact words of statute is to insist for the form rather than essence. So absence of form cannot dissolve an essence if already pleaded.

In the instant case, in my view, the respondent plaintiff has averred and proved by reliable evidence that she has always been and is ready and willing to perform the contract i.e. to bear the expenses of the stamps, registration charges and to pay the balance amount at the time of registration of the document deed of sale since nothing more was to be performed on her part. Even otherwise, as to whether the respondent plaintiff was always ready and willing to perform her part of contract cannot be said to be a substantial question of'' law in view of the decision of Hon''ble Supreme Court in Harjeet Singh and Anr. v. Amrik Singh and Anr. (supra) wherein the Apex Court while considering Section 100 of the Code held that in a suit for specific performance whether plaintiffs were always ready and willing to perform their part of contract and whether the plaintiffs were entitled to alternative relief of compensation under the Specific Relief Act, 1963, are not the question of law at all.

In the instant case, initially the land which is subject matter of the agreement to sale Ex. 1 dated 14.5.1988 was Gair Khatedari land. The appellant defendant acquired the Khatedari Sanad on 17.7.1992. This fact was not informed by the appellant defendant to the respondent plaintiff neither orally nor in writing. Even it is not the case of the appellant defendant that after acquiring, Khatedari right on 17.7.1992 the appellant defendant ever informed the respondent plaintiff that he has acquired Khatedari right so that the respondent plaintiff can bear the expenses of the stamps, registration charges and pay the balance amount of sale consideration for getting the sale deed executed and registered in her favour. The decisions relied on by learned Counsel for the appellant turn on their own facts and are of no help to the appellant on the facts of the instant case.

So far as the contention of the learned Counsel for the appellant defendant that on the relevant date of entering into agreement to sale Ex.l dated 14.5.1988, the appellant defendant did not have a perfect title, is concerned, in view of the provisions of Section 13 of the Specific Relief Act as also Section 47 of the T.P. Act, in my view, even if the appellant defendant had imperfect title on the date of entering into agreement to sale Ex.l, subsequent thereto, indisputably, the appellant defendant acquired the Khatedari Sanad on 17.7.92 and therefore, the respondent plaintiff was entitled for the specific performance of the agreement to sale Ex.l as has been held by Hon''ble Supreme Court in Jumma Masjid Mercara v. Kodimaniandra Daviah (supra).

As regards the contention of learned Counsel for the appellant that the transfer of land subject matter of agreement to sale Ex.l, could be only with the previous consent of the State Govt., it is the duty of the appellant defendant to seek the consent of the State Govt. for transferring the land and this was the part to be performed by the appellant defendant and not by the respondent plaintiff and therefore, the appellant defendant cannot claim the benefit for his own non-performance of his part of contract. At any rate, for obtaining the previous consent of the State Govt. for transfer of the land, the respondent plaintiff had nothing to do as it was the responsibility of the appellant defendant.

So far as the contention of the learned Counsel for the appellant that the document agreement to sale Ex.1 was not a registered document, is concerned, I have already discussed it in the preceding paras that on the date of execution of document agreement to sale Ex. i on 14.5. 1988 this document was not compulsorily registrable u/s 49 of the Registration Act and such document became compulsorily registrable only in the year 1989 and not prior to that, and therefore, the appellant''s contention merits rejection.

In view of the aforesaid discussion, I am of the view that the judgment and decree passed by the first appellate Court is neither perverse nor erroneaus or suffers from any patent error and therefore, no substantial question of law arise in this second appeal. I do not find any error or illegality in the judgment and decree impugned passed by fiist appellate Court.

Consequently, I do not find any merit in the second appeal and the same is therefore, dismissed. Stay petition also stands dismissed.