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Judgment
Laxmi Kanta Mohapatra, J.
Heard Mr. P. Tomcha, learned counsel appearing for the appellants. Mr. Ch. Momon Singh, learned counsel appearing for the respondents had been extensively heard earlier on several occasions and hearing of the appeal was practically over. However, on 21.5.2015 when the appeal was listed and heard, the learned counsel for the respondents prayed for a short adjournment. Accordingly the appeal was directed to be listed to-day. None appears for the respondents to-day.
This appeal is directed against the judgment and decree dated 26.10.2006 passed by the Additional District Judge (Fast Track Court), Manipur East in Original Suit No. 17/1996/35/2002/11/2003. The respondent was plaintiff in the Suit.
The case of the plaintiff/respondent is that one late K. Lala Singh was the original pattadar and owner of the plaint Schedule Aland and during his life time he allowed plaintiff/respondent to possess the southern half of the Schedule A land which is described in Schedule B to the plaint. The respondent/plaintiff used the land and constructed a building at his own cost with the condition that the expenditure to be incurred by him would be taken as part payment of the consideration amount of Rs. 1,00,000/- for sale of the suit land to the plaintiff/respondent in pursuance of an agreement for sale entered into between late K. Lala Singh and the plaintiff/respondent on 8.1.1981. It is also the case of the plaintiff/respondent that pending execution of the registered sale deed, he was allowed to occupy on lease on initial monthly payment of Rs. 300/-, subsequently enhanced to Rs. 1000/- per month. In the meantime, Shri K. Lala Singh expired in the year 1993 and his legal representatives became the owner of the scheduled property. The plaintiff/respondent further claims that out of the total amount, Rs. 50,000/- including expenditure incurred for land development had been paid to late K. Lala Singh during his life time and balance amount of Rs. 50,000/- was to be paid to the legal heirs of late K. Lala Singh for the purpose of execution of the sale deed. It is also alleged in the plaint that the proforma defendant No. 11 was allowed to occupy a small portion of the suit land on monthly payment of Rs. 100/- at the request of late K. Lala Singh. Late K. Lala Singh also executed a sale deed in respect of the northern half of the plaint schedule A land in favour of defendant No. 10 under a registered sale deed. It is also alleged in the plaint that on 1.4.1996, the legal heirs of deceased K. Lala Singh in collusion with principal defendants 1 and 2 asked the plaintiff/respondent to vacate the suit land described under Schedule-B and again on 10.4.1996 they made the same demand. Therefore, the plaintiff/respondent filed the Suit for specific performance of the contract.
The present principal defendants 1-9 contested the Suit by fling a written statement denying all the allegations of the plaintiff/ respondent except transfer of the northern portion of the Schedule A property in favour of the defendant No. 10 as well as status of the plaintiff as a lessee.
The trial court on the basis of the pleadings of the parties framed five issues and ultimately decreed the suit directing the plaintiff/respondent to pay the balance amount of Rs. 50,000/- within 45 days from the date of receipt of the copy of the judgment and decree and also further directed that the present appellants to execute the registered sale deed in favour of the plaintiff/respondent by transferring the suit land described in the plaint scheduled-B partly occupied by the defendant No. 11. Challenging the judgment and decree, defendants 1 - 9 have preferred this appeal.
In course of the hearing of the appeal, Mr. P. Tomcha, learned counsel appearing for the appellants raised only one issue with regard to the maintainability of the Suit. It was contended by the learned counsel for the appellants that the Suit is barred by time and could not have been decreed. According to the learned counsel for the appellants, out of Rs. 1,00,000/- towards consideration amount, Rs. 50,000/- had been paid to late K. Lala Singh and an agreement was executed between the plaintiff/respondent and late K. Lala Singh on 1.8.1991. The sale deed was to be executed 10 years after execution of the above agreement as it was a lease property and sale deed would only be executed after 10 years from the date of lease. Even if the year 1991 is taken to be the year of cause of action, the Suit having been filed in the year 1996 it was barred by time.
The learned counsel for the respondents at the time of hearing of the appeal contended that for a Suit for specific performance of a contract, the period of limitation of filing the Suit is 3 years from the date fixed for performance or if no such date is fixed when the plaintiff/respondent had notice that the defendants refuse to honour the agreement. It was contended by the learned counsel for the respondents that the case of the plaintiff/respondent is covered by the second part of the above provision and therefore the suit is within the prescribed period of limitation.
In order to find out as to whether the Suit is barred by time or not, it is necessary to look into the averments made in the plaint. It is said in the plaint that in the year 1981 Scheduled A land was allotted in favour of late K. Lala Singh and he had paid necessary premium so as to become owner of the said land. During his life time, he executed an agreement to sale part of the Schedule A land described as Scheduled-B on payment consideration of Rs. 1,00,000/- and such agreement of sale was executed in the same year of allotment. According to the terms of the agreement, the plaintiff/respondent had paid a sum of Rs. 50,000/- including expenses incurred by him for development of land for making it habitable. In paragraph-4 of the plaint, it is contended that late K. Lala Singh had agreed to execute the sale deed after lapse of the statutory period of 10 years and on payment of the balance amount of Rs. 50,000/- Therefore normally the sale deed should have been executed sometimes in 1991, after expiry of 10 years from the date of allotment of the land in favour of late K. Lala Singh. It was contended by the learned counsel for the respondent/plaintiff that no time limit was fixed for execution of the sale deed and as such second part of the provision is applicable and the Suit could be filed when the plaintiff/respondent had notice that performance of contract is refused. Paragraph 12 of the plaint is also relevant. It is said in the plaint that cause of action for Suit arose on 1.1.1994 when the principal defendants 1-9 avoided and refused sale. Therefore notice of refusal to perform the contract came to the notice of the plaintiff/respondent on 1st September, 1994. Suit was filed in 1996 and therefore, there was no delay. However in course of examination as PW No. 6, the plaintiff/respondent in para-11 made following statements:
"11. That, I say that in the year 1991, when the period of 10 years was completed one day I myself, my younger brother Umeshchandra met the deceased Pabung Lala at his residence. At the relevant time, we found him lying in a bed ridden condition. However, we had talks for completion of the agreement for sale by executing a proper Sale Deed but under mutual consent Pabung Lala had agreed to execute the Sale Deed respecting the suit land as an when he became better from his illness and directed us to make ready of the remaining unpaid balance approximately amounting to Rs. 50,000/- (Rupees fifty thousand) only for immediate payment when the deed was ready and caused registered for onward action. In the year 1993, unluckily, Pabung Lala succumb to his illness in as much as his illness became more and more serious day by day till he died. On the day of his expiry, I received information regarding his death and on receiving the information, I and my younger brother Umeshchandra went to the house of Pabung Lala and shared the sorrowness of his death. On the same day, we have talks with the defendant No. 1 and some of the other defendants, who are the legal heirs of the deceased Lala Singh and the defendant No. 1, Ima Shakhi assured that she will complete the sale of the suit land after the performance of Shradha Ceremony of late Pabung Lala but they did not comply their assurance."
From the above statements of the plaintiff/respondent, it appears that immediately after the death of K. Lala Singh, the plaintiff/respondent had approached the defendants for execution of the sale deed and the defendants promised to execute the sale deed but did not do so. From the above statement of the respondent/plaintiff, it appears that cause of action for filing the Suit occurred immediately after the death of K. Lala Singh in the year 1993. Therefore even if the second proviso is made applicable, the period of 3 years has to be calculated from 1993 immediately after the death of K. Lala Singh. Admittedly, the Suit having been filed in April, 1996, possibly the Suit being time barred cannot be ruled out. The trial court should have formulated one additional issue as to whether the Suit was barred by time or not. No such issue having been framed, I set aside the impugned judgment and decree, remand the matter back to the trial court and direct the trial court to decide the following issue:
"Whether the Suit is barred by time".
9.1. Consequently the appeal is allowed, the impugned judgment and decree is set aside and the case is remitted back to the trial court, to answer the above issue and decide the Suit afresh on the basis of the said issue on basis of existing evidence. Parties need not be allowed to adduce any further evidence if not required by the Court. The trial court is directed to dispose of the Suit after answering the above issue within 3(three) months from the date of receipt of this order and records.
Lower Court Records be sent back to the Trial Court immediately.