Earamma Mogerthi vs Kuppa Mogaveera

H.G. Ramesh, J.—Being aggrieved by the judgment and decree dated 30.10.2007 passed by the Civil Judge (Sr.Dn.), Kundapura in R.A. No. 51/2004 confirming the order passed by the Ii Additional Civil Judge (Jr.Dn.) and JMFC. Kundapura in O.S. No. 23/2002, the appellants have preferred this appeal.

It appears the defendants in respect of the property fallen to their share under a family partition, to sell the property to the plaintiffs husband. The defendants and the plaintiffs husband entered into an agreement on 02.03.1994. It appears even prior to that, since there was an agreement in the partition between the husband of the plaintiff and defendants, one of the property was offered to the plaintiffs husband and the sale consideration was fixed at Rs. 23,000/-. The said amount has been paid on 02.03.1994 by way of cash to the first defendant towards full sale consideration and plaintiffs husband was put in actual possession and enjoyment of the ''A'' Schedule property. Stating that plaintiffs husband Mr. Manjayya Mogaveera was put in actual possession and enjoyment of the property in question a suit for specific performance came to be filed. It appears that the husband of the plaintiff/Manjayya Mogaveera died on 27.01.1996. As on the date of filing of the suit and prior thereto the plaintiff and her children went on requesting the first defendant to execute the sale deed. However the same has been postponed by the first defendant. First plaintiff got issued a registered legal notice dated 22.12.2001 and the same was served on him. The suit came to be filed on the ground that agreement is denied and on the point of sale consideration. The trial court, on matter being contested, framed four issues for consideration.

After enquiry, the trial court held that plaintiff has proved that there is a sale agreement executed by the first defendant and also that the defendants failed to execute the sale deed even when plaintiffs are ready to perform their part of the contract. However the trial court has dismissed the suit of the plaintiff on two grounds. Firstly, that there is a delay on the part of the plaintiffs in filing the suit and secondly that they have not contended their readiness and willingness to perform their part of the contract. Dissatisfied with the same, plaintiffs preferred an appeal before the Senior Civil Judge, Kundapura. The appellate judge confirming the order of the trial court, dismissed the appeal. Hence this second appeal by the plaintiffs.

The substantial question of law that arises for consideration in this appeal is as under:

"Whether the suit is barred by limitation?"

Heard the learned counsel for the parties.

The suit is presented on 07.02.2002. Agreement said to be entered into between the parties is on 02.03.1994. The argument of the learned counsel for the appellants is that there is no stipulation in the agreement entered into for execution of the sale deed as such, after issuance of notice on refusal, they filed a suit. Both the lower courts erred in holding that the suit is barred by limitation.

Further he submits that in the absence of any such covenant in the agreement, it is from the date of demand and refusal, three years time has to be calculated as such, the suit came to be filed immediately after refusal.

According to the trial court after 20.11.1996, i.e., expiry of the non-alienation period, pursuant to execution of the agreement to sell, the defendants did not execute the sale deed. It is also stated that notice came to be issued on 22.12.2001 and after that notice, first defendant has refused to perform the contract. The reasoning offered by the lower appellate court is also the same. Even according to the plaintiffs, the limitation is three years which commences from 20.11.1996. When such being the case, the plaintiffs ought to have filed a suit before November, 1999 and based on the same ground the lower appellate court dismissed the suit of the plaintiff by confirming the order of the trial court. Even in the absence of such covenant even as held by the lower appellate court, limitation- commences from the date of reply notice i.e., from the date of demand and refusal. Normally from the date of agreement within three years, the right has to be exercised by the plaintiffs. However even assuming that no such date was fixed in the agreement, period of three years will start running when the plaintiff has noticed that performance is refused. Accordingly, as held by the lower appellate court, three years from the date of refusal falls in November, 1999 but the suit came to be filed in February, 2002, i.e., after three years. Hence, I do not find any illegality in the orders passed by both the courts below on the point of limitation is concerned.

However, since the lis is between the parties who are relatives, the respondents are directed to return the amount of Rs. 23,000/- within six months from the date of receipt of a copy of this order.

Accordingly, The appeal is disposed of answering the substantial question of law.