Kailash Chandra and Others vs Vijay Shanker and Others

Arun Bhansali, J.—This appeal is directed against the judgment and decree dated 1.11.2007 passed by the Civil Judge (Jr. Div.), Dungla, District Chittorgarh, whereby the suit filed by the appellants-plaintiffs for specific performance of contract and permanent injunction has been dismissed and against the appellate judgment and decree dated 9.11.2012 passed by the Additional District Judge, Nimbahera, District Chittorgarh, whereby the appeal preferred by the plaintiffs-appellants has been rejected.

The appellants filed a suit on 24.4.2004 seeking specific performance of contract dated 26.5.1981 said to have been executed between the respondents Vijay Shankar and Rameshwar Lal with the appellants'' father Kishan Lal for sale of their land for a sum of Rs. 14,000/- and under the agreement a sum of Rs. 3,900/- was received by Vijay Shankar on the date of agreement and subsequently, Rameshwar Lal also received a sum of Rs. 2,000/- and rest of the amount was to be received at the time of execution of the sale deed, possession was handed-over on the same date. It was inter-alia claimed in the plaint that earlier their father sought execution of sale deed and after the death of appellants'' father, they requested the defendants to execute the sale deed, however, they kept on postponing the same and, therefore, notice dated 18.2.2004 was got issued, thereafter also, the agreement was not honoured. It was prayed that the suit be decreed and permanent injunction be issued against the defendants not to interfere in their possession.

Written statement was filed indicating that no agreement was executed regarding the land claimed in the plaint, no specific Araji number and area has been indicated. The land belonging to the defendants is in their possession, objection about jurisdiction of civil court and limitation were also raised.

The trial court framed 08 issues and after evidence was led by the plaintiffs and despite filing affidavit, the defendants did not appear in the witness-box, after hearing the submissions the suit was dismissed. The trial court came to the conclusion that no details/specification/boundaries regarding the land was indicated in the agreement (Ex.-1), facts relating to possession was also not indicated and, therefore, the execution of the agreement and payment was not proved, after so-called execution of the agreement in the year 1981, the notice for the first time was given in the year 2004 and, therefore, it cannot be said that the plaintiffs are ready and willing to perform their part of the contract and the suit was barred by limitation as prescribed under Article 54 of the Limitation Act, 1963.

The first appellate court after perusing the record and hearing the parties came to the conclusion that boundaries of the land were not indicated in the agreement, though the same were mentioned in the plaint, the agreement did not bear signature of Rameshwar Lal and there is no reference of said Rameshwar Lal in the agreement, though a receipt of Rs. 2,000/- was shown by Rameshwar Lal, but the plaintiffs failed to prove the identity of the land which was indicated in the agreement, no indication was made in the evidence of the parties as to when and on what date any effort was made by the plaintiffs to perform their part of the contract and it was only indicated in the affidavit that the defendants did not come and receive the balance consideration and did not execute the sale deed and, therefore, the notice was got issued and, therefore, the Court came to the conclusion for a period of almost 23 years, after which notice was issued indicates that the plaintiffs were not ready and willing to perform their part of the contract, delivery of possession in pursuance of the agreement was also not proved and the suit was ex-facie barred by limitation and consequently, dismissed the appeal.

Learned counsel for the appellants submitted that the approach of both the courts below is ex-facie erroneous and the judgment has been delivered against the record of the case wherein no evidence was led by the defendants and no purposeful cross-examination of the plaintiffs was done and, therefore, the judgments passed by both the courts below cannot be sustained.

It was further submitted that the courts below were over awed by the fact that agreement to sale was dated 26.5.1981 and suit was filed in the year 2004 and tried to submit that as the plaintiffs were in possession of the land in question, which may have been the reason for not insisting for execution of the sale deed. But in any case, the suit cannot be said to be barred by limitation.

I have considered the submissions made by learned counsel for the appellants and have perused the judgments of both the courts below.

Both the courts have categorically found that the agreement did not indicate the boundaries of the land regarding which the agreement was made, there was no reference of delivery of possession in the said agreement, no effort on part of the plaintiffs during the period 1981 to 2004, when the first notice was got issued from the lawyer, was shown to have exist reflecting their readiness and willingness to perform their part of the contract and the suit was ex-facie barred by limitation.

The findings recorded by both the courts below on the fact about non-indication of boundaries in the agreement, the lack of readiness and willingness on part of the plaintiffs during the period 1981 to 2004, for lack of any effort on their part are pure findings of fact and despite taking the court through certain documents and referring to statements by the learned counsel, it cannot be said that the findings are perverse so as to require interference in the second appeal.

The issue of limitation stares in the face of the appellants, inasmuch as, admittedly, the agreement was entered on 26.5.1981 and allegedly, the last payment was made in November, 1981. The agreement envisaged payment of the balance sum and execution of the sale deed during the year of agreement itself. However, filing the suit after a passage of 23 years shows that the suit is ex-facie barred by limitation and the fact that the plaintiffs were allegedly in possession of the land in question cannot mitigate the issue of limitation and the suit on the face of it was barred by limitation.

Consequently, there is no substance in the appeal, the same is, therefore, dismissed.