Gyanender Singh vs Subhash Chand & Ors

,,

Prathiba M. Singh, J",,

The present appeal arises out of judgement and order dated 27th September, 2016 by which the suit for specific performance and permanent",,

injunction filed by the Appellant/Plaintiff (hereinafter „Plaintiff‟) was dismissed as being barred by limitation.,,

Late Shri Banwari Lal was the co-owner of land comprising in Khasra No.33/3/1 (1-16) in the Revenue Estate of Village Palam, New Delhi. Late",,

Shri Banwari Lal had four sons namely Subhash Chand, Satbir Singh, Rajesh Kumar and Ganga Ram. Plaintiff is the son of Ganga Ram, who is now",,

deceased and is thus represented by his heirs. The Respondents/Defendants (hereinafter „Defendants‟) are the other sons of Late Shri Banwari,,

Lal. The Plaintiff is thus the nephew of the Defendants who are his uncles. There are disputes pending with the Gaon Sabha in respect of the land,,

which forms the estate of Shri Banwari Lal.,,

However, the dispute in the present case relates only to 50 sq. yards forming part of Khasra No.33/3/1 the above mentioned land which was agreed",,

to be sold by the Defendants to the Plaintiff, vide agreement to sell dated 16th February, 2009. The consideration agreed was Rs.3,50,000/- and",,

Agreement to Sell, GPA, Will, possession letter, affidavit and receipt were executed. The Plaintiff claimed to be in possession of this part of the",,

property since 16th February, 2009 and has raised the boundary wall.",,

Plaintiff had filed an earlier civil suit no.1082/14/06 against Late Shri Banwari Lal and the Defendants which was dismissed on 15th January, 2016",,

under Order VII Rule 11 CPC. It is the case of Plaintiff that after the agreement to sell dated 16th February, 2009 was executed, the Defendants",,

have failed to execute the final sale deed or get the same registered. It is the Plaintiff’s case that after the dismissal of the said earlier suit,",,

attempts were made by the Defendants to dispossess the Plaintiff. Hence, the present suit, praying for decree of specific performance, possession and",,

permanent injunction came to be filed.,,

In the written statement, the Defendants pleaded that all the legal heirs of Late Shri Banwari Lal have not been impleaded and the suit was bad for",,

non-joinder. It was also pleaded that the documents including agreement to sell of 16th February, 2009 were not mentioned in the earlier suit despite",,

Plaintiff having knowledge of the said suit and hence, the present suit was not maintainable. The Defendants also challenged the genuineness of the",,

documents dated 16th February, 2009. The Defendants further challenged that no consideration was received by them and that the documents",,

appeared to be completely fabricated. The Defendants further submitted that there was a compromise deed dated 21st February, 2009 which was",,

sought to be filed by the Plaintiff herein in civil suit no.1082/14/06, which was finally withdrawn and even at that stage, the documents dated 16th",,

February, 2009 had not been pleaded and no right was claimed in view of the said documents.",,

Preliminary issue was framed on 19th August, 2016 to the following effect:",,

“Whether the suit of Plaintiff is barred by law of limitation.â€​,,

The Trial Court relied upon Article 54 of the Limitation Act and held that the pleadings in respect of cause of action are very vague. The Court,,

further held that since no specific date was provided for performance in the agreement for performance of the agreement and since no notice was,,

issued calling upon the Defendants to execute the sale deed, the cause of action would to be calculated from the date of agreement i.e. 16th February,",,

2009. Since the date of institution of the suit is 18th March, 2016 the suit is barred by limitation.",,

Submission of Appellant/Plaintiff,,

The submission of counsel for the Plaintiff is that the Plaintiff has been in possession of the property i.e., 50 sq. yards for many years now. He",,

submits that the documents were executed by the Defendants and that there is no doubt as to the genuinity of the documents. He further submits that,,

civil suit no.1082/14/06 was rejected under Order VII Rule 11 CPC on 15th January, 2016. However, the same was set aside on 5th September, 2016",,

by the Appellate Court. Learned counsel for the Plaintiff further submits that under Article 54 of the Limitation Act, the three year period begins from",,

the date when specific performance is refused. He relies upon judgments of the Supreme Court in Balasaria Construction (P) Ltd. v. Hanuman Seva,,

Trust and Ors. (2006) 5SCC 658 (Balsaria supra) and Ramesh B. Desai & Ors. v. Bipin Vadilal Mehta & Ors., AIR 2006 SC 3672.",,

Submissions of Respondents/Defendants,,

On the other hand, learned counsel for the Defendants has submitted that the Plaintiff was a party to civil suit no.1082/14/06 but at no point did the",,

Plaintiff rely upon the agreement to sell and other documents. If the Plaintiff had the title of 50 sq. yards of the property, he should have asserted the",,

same as part of the said proceedings. Defendants further relies upon order dated 6th September, 2013 passed in suit no.598/2012 between Shri Ganga",,

Ram and Late Shri Banwari Lal which held that Shri Banwari Lal was the owner of the suit property and hence Shri Ganga Ram was not entitled to,,

any relief and injunction. Counsel for Defendants further submits that since during the pendency of the said suit, Shri Ganga Ram had passed away,",,

the Plaintiff was impleaded in the said suit and hence he had knowledge of the rival claims therein. If the Plaintiff had any independent rights qua 50,,

sq yards of the land which was part of the said larger property, he would have pleaded the same. The Defendants rely upon the judgment of the",,

Supreme Court in Janardhanam Prasad v. Ramdas, JT 2007 (3) SC 187.",,

Analysis and Findings,,

The Court has perused the judgment of the Trial Court and pleadings of the parties. It is clear from the factual narration that there are at least two,,

pending disputes in respect of the same land part of which is the subject matter of the present appeal. The dispute had originally arisen between Late,,

Shri Ganga Ram and Late Shri Banwari Lal and after their demise, the dispute continued between their LRs. Copies of the agreement to sell, Will,",,

possession letter, receipt etc. have all been placed on record but at this stage, without evidence it is not possible to hold that the said documents are",,

either fabricated or that these are genuine documents. It is the Plaintiff’s categorical case that he is in possession of 50 sq. yards of the property.,,

However, the Defendants raise doubts as to the conduct of the Plaintiff for having not relied upon these documents in any of the earlier litigations",,

amongst the parties.,,

The Plaintiff’s contention is that limitation being a mixed question of fact and law especially in a matter of this nature, the Trial Court ought not",,

to have rejected the suit, at the initial stage, by holding it to be time barred. Both the parties have heavily relied upon the orders passed by the Trial",,

Court in different proceedings which are pending between them. While the Defendants rely upon the conduct of Plaintiff, the Plaintiff relies upon the",,

documents which have been executed. Photographs have been placed on record to show the extent of construction in the suit property. The Plaintiff,,

submits that while the other proceedings relate to the entire land, this suit relates only to the 50 sq. yards, which is the subject matter of the agreement",,

to sell. The documents as placed on record appear to bear signatures of all the three defendants and the Plaintiff. While there could be some merit in,,

“For specific performance of a

contract",Three years,"The date fixed for the performance, or, if no such date

is fixed, when the plaintiff has notice that performance

is refusedâ€​

being barred, as in such cases, the question of limitation being a mixed question of fact and law as held in Balsaria (supra), would require evidence to",,

be adduced. There are conflicting versions pleaded by both sides. The stand of both the parties have their own merits and demerits. Suffice to say at,,

this stage that ex-facie cannot be held that suit is barred by limitation. History of past litigations, some of which are still pending, clearly leads the",,

Court to the conclusion that evidence deserves to be led in the matter. The fact that the Plaintiff may not have pleaded the agreement to sell in the,,

litigations filed by his father in respect of the larger share in the land does not disentitle him from maintaining a separate suit to enforce the agreement,,

to sell and accompanying documents.,,

Accordingly, it is directed that the suit be restored to its original number and be further proceeded with in accordance with law. The issue of",,

limitation already framed shall be adjudicated at the final stage by the Trial Court. It is for the parties to request, clubbing of the other suits in respect",,

of the larger share in the land and to seek consolidation, if so advised. Such a request would be considered by the Trial Court, in accordance with law.",,

The appeal is allowed with no orders as to costs.,,